1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Habeas Corpus Petition(MD)No.138 of 2011 Valarmathi .. Petitioner Vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Magistrate and District Collector, Virudhunagar District, Virudhunagar. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus calling for the entire records connected with the detention order of Respondent No.2 in No.Cr.M.P.No.06/2011 dated 12.02.2011 and quash the same and direct the respondents to produce the body and person of the petitioner's son by name Thalamani, Son of Jeyapandi, aged about 31 years detained in Madurai Central Prison before this Court and set him at liberty forthwith. 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 S.RAJESWARAN, J.) Challenge is made to the order of detention passed by the second respondent in his Proceedings Cr.M.P.No.06/2011 dated 12.02.2011 whereby the petitioner's son by name Thalamani was ordered to be detained under the provisions of 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 of 1982) branding him as a "GOONDA". https://hcservices.ecourts.gov.in/hcservices/ 2 2. Advancing the arguments assailing the order of the detention, the learned counsel appearing for the petitioner raised the following grounds:- (i) There is an unexplained delay of 5 days in considering the representation of the detenu and therefore, the detention order is vitiated. (ii) There was non-application of mind on the part of the detaining authority while passing the order of detention. It is stated in the detention order that out of four adverse cases, he was convicted in two cases and obtained bail in one case and obtained anticipatory bail in one case and committed crimes in the ground case, but there is no mention in the detention order as regards the detenu filing bail or anticipatory bail petition in the ground case. Without considering the same, the detention order has been passed. 3. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and perused the records. 4. It is seen from the Proforma produced by the learned Additional Public Prosecutor before this Court that the representation of the detenu was received on 17.02.2011 and the remarks were received only on 25.02.2011. Thus, there was a delay of 8 days in between the date on which remarks were called for and the date on which the remarks were received, out of which, 3 days happened to be holidays i.e. 16.02.2011, 19.02.2011 and 20.02.2011 and in effect, there was a delay of 5 days in between. This delay has not been explained by the detaining authority. Such unexplained delay in considering the representation would amount to deprivation of making effective representation guaranteed under Article 22(5) of the Constitution of India and therefore, the impugned order of detention is liable to be quashed. 5.Apart from that, it is seen in Paragraph No.5 of the detention order that "Out of four adverse cases against Thiru.Thalamani, he was convicted in two cases and obtained bail in one case and obtained anticipatory bail in one case and committed crimes in the ground case". But there is no mention in the detention order as regards the detenu filing bail or anticipatory bail petition in the ground case. Without considering the same, the detention order has been passed. There is also no cogent material to arrive at the conclusion that he would have consistently involved in the activities which would be prejudicial to the interest of the society. Thus, there was non- application of mind on the part of the detaining authority while passing the order of detention. Under the circumstances, the order of detention has to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 3 6. Accordingly, the detention order in Cr.M.P.No.06/2011 dated 12.02.2011 passed by the second respondent is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Magistrate and District Collector, Virudhunagar District, Virudhunagar. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai 9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. HCP(MD)No.138 of 2011 28.06.2011 km SMA/14.7.2011/6C/3P https://hcservices.ecourts.gov.in/hcservices/