IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 1-4-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.No.2259 of 2009 Ammu .. Petitioner vs 1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai 9. 2.The Commissioner of Police Chennai Egmore, Chennai 8. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the records in connection with the order of detention passed by the 2nd respondent in his proceedings Memo No.453/BDFGISSV/2009 dated 12.11.2009 against the petitioner's husband/detenu Dinesh Kumar, S/o. Elumalai, aged about 27 years and who is now detained in Central Prison, Puzhal, Chennai and set aside the same and produce him before this Court and set him at liberty. For Petitioner : Mr.Philip Ravindran Jesudoss For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of detention made by the second respondent dated 12.11.2009, whereby the petitioner's husband Dinesh Kumar was ordered to be detained under Act 14 of 1982 branding him as a Goonda. 2.The Court heard the learned Counsel for the petitioner. All the materials and in particular the order under challenge are looked into. 3.It is not in controversy that pursuant to the recommendation made by the sponsoring authority that he is involved in two adverse cases namely (1) R3 Ashok Nagar Police Station Cr.No.1017 of 2009 under Sections 341, 302 and 294(b) of IPC and (2) R6 Kumaran Nagar https://hcservices.ecourts.gov.in/hcservices/ PS Cr.No.991/2009 under Sections 341, 323, 385 and 506(2) IPC and also another case which is shown as the ground case in Crime No.1409/2009 registered by R3 Ashok Nagar Police Station under Sections 294(b), 341, 324 and 307 of IPC and on scrutiny of all the materials available, the detaining authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order has made an order of detention which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the petitioner, the learned Counsel relied on two grounds in order to set aside the same. Firstly, as far as the first adverse case was concerned, it was registered under Sec.302 of IPC, and he was arrested and released on bail on 28.10.2009, but a first representation was made on 3.11.2009, and since the detention order was made on 12.11.2009, it was a pre-detention representation. But, it has not been considered at all. The learned Counsel in order to satisfy the Court produced an acknowledgement therefor. Secondly, insofar as the ground case in Crime No.1409/2009, he was arrested actually on 1.11.2009 and sent to Court on 2.11.2009; but, in page No.67 and its Tamil version in page 68 it is shown as if he was sent to the Court on 1.11.2009 itself, and it required a clarification from the sponsoring authority; but it has not been made. Thus the documents were misled, and on that ground the order under challenge becomes vitiated. 5.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its consideration on the submissions made. 6.As could be seen, after recording the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order, the detaining authority has made the order under challenge on 12.11.2009. On perusal of the materials available, there was no reference as to the pre-detention representation which, according to the petitioner, was made on 3.11.2009. The acknowledgement for the same is also placed in the hands of the Court. The learned Additional Public Prosecutor for the State though got adjournment in this regard is unable to give an answer. Further the copy of the order under challenge does not reflect that there was any pre-detention representation either received or considered or decided. Under the circumstances, this Court is of the view that the non-consideration of the pre- detention representation would be a good ground for setting aside the order. 7.Equally, the detenu was admittedly arrested in Crime No.1409/2009 on 1.11.2009, and he was produced before the Court only on 2.11.2009. In page No.67, the arrest report, and its Tamil version in page 68, it is shown as 1.11.2009. Thus it would be quite clear that it was a situation where the detaining authority should have called for a clarification but not done so. Under the circumstances, both the grounds are available for the petitioner in order to set aside the order under challenge. https://hcservices.ecourts.gov.in/hcservices/ 8.Accordingly, this habeas corpus petition is allowed setting aside the order of detention passed by the second respondent and the detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar nsv To: 1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai 9. 2.The Commissioner of Police Chennai Egmore, Chennai 8. 3.The Public Prosecutor High Court, Madras. 4.The Superintendent, Central Prison, Puzhal, Chennai. 5.The Joint Secretary to Government, Public (Law & Order) Fort.St.George, Chennai. + 1 cc to Mr.Philip Ravindran Jesudoss,Advocate,SR.21856 HCP No.2259 of 2009 VSV(CO) EM/9.4.10 https://hcservices.ecourts.gov.in/hcservices/