1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.03.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M.AKBAR ALI H.C.P.(MD)No.20 of 2011 Kavitha ... Petitioner Vs. State Rep.by 1.The Secretary to the Government of Tamil Nadu, Home Prohibition and Excise Department, Fort St.George, Chennai 600 009. 2.The Commissioner of Police, Trichirapalli City, Trichirappalli. ... Respondents PRAYER: The Habeas Corpus petition is filed under Article 226 of the Constitution of India, calling for the records of the 2nd respondent pertaining to the detention order made in C.P.O./T.C./I.S./D.O.No.72/2010 dated 18.11.2010 in detaining the detenue as Goonda under the Tamil Nadu Act of 1982 and quash the same and direct the respondents to produce the said detenue, namely Paplu @ Prabu son of Jeyaraj, who is detained at the Central Prison, Trichy before this court and set him at liberty. For Petitioner : Mr.N.Sankar Ganesh For Respondents : Mr.M.Daniel Manoharan,APP O R D E R (Order of this Court was made by G.M.AKBAR ALI,J.) The petitioner is the wife of the detenu, who was found as Goonda and detained under the detention order dated 18.11.2010. Challenging the detention order, the petitioner is before this Court by way of filing this petition. 2. Mr.N.Sankar Ganesh, learned counsel for the petitioner would submit that there is a delay in considering the representation of the detenu by the Government. The learned counsel also took a ground that the Detaining Authority has stated that there is a possibility for the detenu to come out of bail when the detenu has https://hcservices.ecourts.gov.in/hcservices/ 2 not filed any bail application. The learned counsel also relied on the copies furnished to the detenu wherein there is a defect in translation of the remand order. 3. Per contra, the learned Additional Public Prosecutor would submit that there is no delay in considering the representation of the detenu considering the intervening holidays. The learned Additional Public Prosecutor also pointed out that the first adverse case relates to an offence punishable under Section 302 I.P.C., wherein the detenu was granted bail and therefore, the Detaining Authority has considered that there is a real possibility for the detenu to come out of bail for the alleged offence punishable under Sections 395, 396 and 506(ii) I.P.C. The learned Additional Public Prosecutor would submit that there is an error in mentioning the extension of date of remand. 4. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. 5. The representation of the detenu has been received by the authorities on 03.01.2011 and the remarks were called for on 04.01.2011. As per the proforma, in serial No.9, the remarks were received on 12.01.2011. According to the petitioner, there is a delay of 8 days. However, the remarks called for from the Sponsoring Authority were received only on 07.01.2011 and the remarks were received from the Sponsoring Authority on 11.01.2011. In between 07.01.2011 to 11.01.2011, there were 3 days for the Sponsoring Authority to furnish the remarks and out of which, there were 2 intervening holidays namely, Saturday and Sunday. Therefore, there is no inordinate delay in considering the representation of the detenu. 6. As far as the bail application is concerned, there were 4 adverse cases filed against the detenu. The 1st adverse case is of the year 2007 for an alleged offence under Section 302 I.P.C. The 2nd adverse case is of the year 2008 for the offence under Section 395 I.P.C. The 3rd and 4th adverse cases and also the ground case are of the year 2010 and they were all registered on 07.l1.2010 and 08.11.2010 respectively, for the alleged offence under sections 387, 506(ii), 392 r/w 397 and 506(ii) I.P.C. 7. Admittedly, the detenu has not filed any bail application and the same was also considered by the Detaining Authority in paragraph 5 of the grounds of detention order. The Detaining Authority would consider that the petitioner is the wife of the detenu, who had stated before the Inspector of Police that she would take the detenu on bail in all these cases and therefore, he could draw an inference that there is a real possibility of the detenu coming out of bail. 8. In the Full Bench decision of this Court in Thirupathi.K. V. District Magistrate and District Collector, Tiruchirapalli reported in 2005 M.L.J. (CRI.) 1101 it was held as follows: https://hcservices.ecourts.gov.in/hcservices/ 3 "A strict insistence of the usage of the word "imminent" is not necessary and the other convincing expressions like "real possibility", "very likely" or "most likely" can be used by the detaining authority to reflect its satisfaction with regard to immediate release of the detenu on bail. ... The orders of detention and its continuance should be in conformity with Art.22 of the Constitution of India. The detaining authority is required to follow strictly and scrupulously the forms and rules of law prescribed in that behalf or by the statutory provision under which the order of detention is being made after arriving at a subjective satisfaction. Any violation would entail quashing of the order of detention." 9. In a decision of the Supreme Court reported in 2006(1) MLJ (Crl.) 539 (T.V.Saravanan alias S.A.R.Prasanna Venkatachariar Chaturvedi Vs. State, through Secretary and another) it has held as follows: "14. We are satisfied that for the same reaons the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. 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 the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated 13.12.2005." 10. Therefore, we are of the considered view that there is non-application of mind by the detaining authority while considering the bail possibility. When there is no bail application is pending and he came to a conclusion that the detenu may come out of bail to indulge in future activities which will be prejudiced to the maintenance of public order. Apart from that there is a glaring error in translating the remand order dated 08.11.2010. In the English version, the remand was extended to till 22.11.2010 whereas, in Tamil translation, it is stated that the remand was extended upto 12.11.2010, which is prejudicial to the detenu for making effective representation. https://hcservices.ecourts.gov.in/hcservices/ 4 11. Therefore, we are of the considered view that the impugned detention order was passed mechanically and on non-application of mind and as such the detention order dated 18.11.2010 is vitiated and the detenu is 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 OF TAMILNADU HOME, PROHIBITION AND EXCISE DEPARTMENT, FORT ST.GEORGE, CHENNAI – 600 009. 2. THE JOINT SECRETARY TO GOVERNMENT, PUBLIC (LAW & ORDER) FORT ST.GEORGE, CHENNAI – 9. 3. THE COMMISSIONER OF POLICE TIRUCHIRAPPALLI CITY, TIRUCHIRAPPALLI. 4. THE SUPERINTENDENT CENTRAL PRISON, TIRUCHIRAPPALLI. 5. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC TO MR.N.SANKAR GANESH, ADVOCATE (SR.NO.6214) H.C.P.(MD)No.20 of 2011 14.03.2011 nbj NSV/2.5.11/4P/7C https://hcservices.ecourts.gov.in/hcservices/