1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.06.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M.AKBAR ALI Habeas Corpus Petition (MD) No.86 of 2011 Rajeswari, W/o.Maniboyan ... Petitioner vs. 1.The Secretary to Government, Home Prohibition and Excise Department, Secretariat, Chennai-600009. 2.The District Magistrate/District Collector, Theni District. 3.The Superintendent of Prison, Madurai Central Prison, Madurai District. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of habeas corpus calling for the entire records connected with the detention order of the 2nd respondent in No.D.O.No.24/2010, dated 15.11.2010, quashing the same and consequently setting the petitioner's son by name Raja @ Koormiya Raja, aged 22 years, detained at Madurai Central Prison, at liberty. For Petitioner : Mr.R.Alagumani For Respondents : Mr.P.Jothi, Addl.Public Prosecutor. O R D E R (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner, who is the mother of the detenu, has filed this petition challenging the order of detention, dated 15.11.2010, clamped by the 2nd respondent under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982), on the detenu branding him as a "Goonda" and directing him to be detained at the Central Prison, Madurai. https://hcservices.ecourts.gov.in/hcservices/ 2 2.Mr.R.Alagumani, learned counsel for the petitioner, submitted that though many grounds have been raised in the petition, he confines his submission on three grounds, namely (i) non- application of mind on the part of the detaining in recording his satisfaction as to the real possibility of the detenu coming out bail; (ii) unexplained delay in the consideration of the representation of the detenu; and (iii) the detention order has been passed after a long delay from the date of arrest of the detenu in the ground case. It is submitted that when it is admitted by the detaining authority himself that the no bail application was filed by the detenu in the ground case, the conclusion arrived at by the Detaining Authority that there is a real possibility of the detenu coming out on bail is mere ipse dixit of the detaining authority and without application of mind. In support of his submission, the learned counsel relied on the judgment of the Supreme Court in A.Shanthi v. Government of Tamil Nadu [(2006) 8 SCC 711]. 3.Regarding delay in the consideration of the representation, the learned counsel appearing for the petitioner submitted that the delay in considering the representation made by the detenu on 28.01.2011, vitiates the detention order. Learned counsel for the petitioner submitted that though the said representation was received by the Government on 04.02.2011, remarks were called for from the detaining authority only on 07.02.2011 and such remarks were received by the Government only on 17.02.2011, after a delay of ten days. Therefore, learned counsel submitted that the delay occurred in furnishing remarks remains unexplained and this unexplained delay vitiates the order of detention. 4.Regarding the delay in passing the detention order, learned counsel for the petitioner submitted that the detenu was arrested in the case Crime No.322/2010 on the file of Jeyamangalam Police Station on 23.09.2010 and since then the detenu is in judicial custody and he has not filed any bail application and in such circumstances there is no necessity to detain the detenu under the preventive detention Act. 5.The learned Public Prosecutor would submit that the Detaining Authority has considered all the materials placed before him and after analysing the same, the detaining authority has formed his opinion as to the possibility of the detenu coming out on bail and therefore there is nothing to interfere with the order of detention. Regarding the alleged delay in furnishing remarks, learned Additional Public Prosecutor submitted that there was three holidays in between 07.02.2011 and 17.02.2011 and therefore the delay occurred is not an inexcusable delay. On the aspect of the detention order came to be passed after a lapse of about two months, learned Additional Public Prosecutor submitted that considering the materials placed before him, the detaining has formed opinion that the detenu is habitually committing crimes and also acting in a manner https://hcservices.ecourts.gov.in/hcservices/ 3 prejudicial to the maintenance of public order and hence there is compelling necessity to keep him under detention as per the provisions of Tamil Ndu Act 14 of 1982. Therefore, according to the learned Additional Public Prosecutor, all the three grounds are not available to the petitioner and consequently the petition is liable to be dismissed. 6.We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 7.The petitioner, who is the mother of the detenu, has come forward with this petition to set aside the detention order dated 15.11.2010. The grounds raised by the petitioner are that the Detaining Authority has passed the impugned order mechanically and without application of mind and there is no cogent material before him to come to the conclusion that there is a real possibility of the detenu coming out on bail. Further, there is delay in the consideration of the representation of the detenu. Another ground is that there is no necessity to pass an order of detention after a lapse of about two months from the date of arrest of the detenu in the ground case. 8.It is by now well settled that in all detention laws, the orders of detention and its continuance should be in conformity with Article 22 of the Constitution of India and even a slightest infraction of the constitutional protection enshrined therein would be a valid ground to set the detenu at liberty. Therefore, there must be cogent materials before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from materials on record and must not be ipse dixit of the Authority passing the detention order. In the decision relied on by the learned counsel for the petitioner [(2006) 9 SCC 711] cited supra, the Hon'ble Supreme Court has held as follows: "4.In similar circumstances, this Court in T.V.Saravanan v. State - [(2006) 2 SCC 664], directed release of the detenu. Counsel for the State is unable to distinguish that judgment. this Court in T.V.Saravanan has held that the "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. the inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not https://hcservices.ecourts.gov.in/hcservices/ 4 sufficient to sustain the order of detention." 9.In the case of person in custody a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material placed before him (a)that there is real possibility of his being released on bail, and (b)if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its satisfaction in this behalf,such and order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such oppositions to question it before a higher court. 10.Therefore the imminent possibility or real possibility of the detenu coming out on bail is to the subjective satisfaction of the detaining authority and not on mere ipse dixit. 11.That being the legal position, in the present case, when the bail application filed by the detenu in the ground case was dismissed and he has not filed any further application after dismissal of the earlier bail application, the Detaining Authority, without any material, much less cogent materials, has recorded his subjective satisfaction as to the real possibility of the detenu coming out on bail on mere ipse dixit and clamped the order of detention. In paragraph No.5 of the Grounds of Detention, the detaining authority has observed as follows: "(5)I am aware that Thiru. Raja @ Koormaiya Raja is in remand connection with the Jeyamangalam PS Crime No.322/2010 and I am also aware that there is a real possibility of his coming out on bail by filing bail application for the above case ...." 12.As rightly pointed out by the learnedcounsel for the petitioner, the detenu has not filed bail application in the ground case. In such circumstances, the subjective satisfaction arrived at by the detaining authority as to the real possibility of the detenu coming out on bail in the ground case is not based on any materials as held by the Hon'ble Supreme Court in the decision cited supra. Therefore, we are of the considered view that the impugned detention order has been passed mechanically and without application of mind and as such the detention order, dated 15.11.2010, is vitiated. 13.Regarding the delay aspect, the learned Additional Public Prosecutor produced before us produced the pro-forma containing dates and events. It is seen from the said pro-forma, the representation of the detenu, dated 28.01.20111, was received by https://hcservices.ecourts.gov.in/hcservices/ 5 the Government on 04.02.2011 and remarks were called for from the detaining authority on 07.02.2011. However, such remarks were received by the Government only after a delay of ten days. Though it was contended by the learned Additional Public Prosecutor that there were three holidays in between 07.02.2011 and 17.02.2011. Even after excluding the said three days, still there were seven working days, for which there is no explanation in the counter affidavit. 14.In District Collector vs. S.K. Hasmath Beevi, reported in 2001(5) SCC 401, the Supreme Court has held as follows: "Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article 22(5) in itself does not say to whom a representation could be made or who will consider the representation, but because of the language of Article 22(5) and because of the fact that an Order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure of time taken by the appropriate authority for considering a representation, it should be considered and disposed of by the Government as soon as it is received." 15.In Rajammal Vs. State of Tamil Nadu, reported in 1999 (1) SCC 417, the Apex Court has held that the representation was received by the Secretary to the government on 05.02.1998, the government which received the remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. Thereafter, the files were submitted to the minister, who received it on tour. Finding that there was no valid explanation for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiated the detention. 16.Contending that even a delay of three days in disposal of representation would have the effect of vitiating order of detention, learned counsel for the petitioner has drawn our attention to the decision of this Court in 2007(2)MWN(Cr.)145 – Sumaya Vs. The Secretary to Govt., wherein the Division Bench has observed as under in paragraphs 5.3 and 5.4 as under: "5.3.The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India, vide Ram Sukrya Mhatre v.R.D. Tyagi, 1992 Supp.(3) SCC 65. 5.4 Any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of https://hcservices.ecourts.gov.in/hcservices/ 6 Rajasthan, 1980(2) SCC 321, and Raghavendra Singh v. Supdt., Dist.Jail,l 1986(1) SCC 650." We are in respectful agreement with the view taken by the Division Bench. 17.Law is well settled that since personal liberty of a person is involved in the preventive detention, the authorities concerned are required to deal with the representation with utmost dispatch and promptitude, without any unnecessary delay. The unexplained delay in the consideration and disposal of the representation would have the effect of vitiating the detention order and accordingly the detention order is liable to be quashed. Since we are inclined to quash the order of detention on the above two grounds, there is no need consider the third ground. 18.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 15.11.2010, passed by the 2nd respondent in his proceedings D.O.No.24/2010, is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CO) /True copy/ Sub Assistant Registrar To: 1.The Secretary to Government, Home Prohibition and Excise Department, Secretariat, Chennai-600009. 2.The District Magistrate/District Collector, Theni District. 3.The Superintendent, Central Prison, Madurai Central Prison, Madurai District. 4. The Joint Secretary to Government Public (Law and Order) Fort Saint George, Chennai-9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order in H.C.P.(MD)No.86 of 2011 Dated:29.06.2011 gb/SMA/18.7.2011/6C/6P https://hcservices.ecourts.gov.in/hcservices/