1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:25.04.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI HCP(MD)No.64 of 2011 Rukmani :Petitioner -Vs- 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2.The Commissioner of Police, Madurai City, Madurai. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. :Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records connected with the detention order of the Respondent No.2 in No.01/BDFGISSV/2011 dated 4.1.2011 and quash the same and direct the respondents to produce the body and person of the petitioner's son by name Bala @ Acid Bala, son of Ponnusamy, aged about 29 years detained in Madurai Central Prison before this Court and set him at liberty forthwith. For petitioner :Mr.R.Alagumani For respondents:Mr.Daniel Manoharan, Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN, J) The petitioner is the mother of the detenu. Challenging the Order of Detention in No.01/BDFGISSV/2011 dated 04.1.2011 passed by the second respondent branding the detenu, namely, Bala @ acid Bala, as a “Goonda” under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), this Habeas Corpus Petition has been filed by the petitioner/mother of the detenu. 2.Learned counsel appearing for the petitioner, Mr.R.Alagumani, argued that the detention order is liable to be set aside on the following grounds:- (i)There is an unexplained delay of five days and two days at different stages in considering the representation of the detenu and therefore, the detention order is vitiated. https://hcservices.ecourts.gov.in/hcservices/ 2 (ii)There was no application of mind on the part of the detaining authority while passing the order of detention. Though the detaining authority was aware that the detenu was in remand and he had not filed any bail application in the ground case and the third adverse case, the detaining authority has stated that the detenu would file bail applications and there is real possibility of his coming out on bail. The apprehension entertained in the mind of the detaining authority is not justifiable, for the reason that he has prejudged the matter. Even if the detenu filed bail applications, the detaining authority could not foresee the nature of order to be passed by the Court. 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 27.1.2011, remarks were called for on 28.1.2011 but remarks were received only on 04.2.2011. Thus, there was a delay of seven days, out of which, 2 days happened to be holidays i.e. 29.1.2011, 30.1.2011 and in effect, there was a delay of 5 days in considering the representation, which remain unexplained. Later, Minister for (Law, Courts & Prisons) dealt with the representation on 8.2.2011 but rejection letter came to be prepared only on 14.2.2011. In between, there was delay of five days, out of which, two days were holidays viz., 12.2.2011 and 13.2.2011 and the delay of remaining 3 days remain unexplained. 5.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. 6.Apart from that, it is seen in Paragraph No.5 of the detention order that- "5.I am aware that Tr.Bala @ Acid Bala, S/o. Ponnusamy is now in remand in ground case in C1 Thideer Nagar Police Station Cr.No.2386/2010 and also in 3rd adverse case in C1 Thideer Nagar PS Cr.No.2375/2010 and he is lodged at the Central Prison, Madurai. Further, I am also aware that, he has not filed any bail application in the 3rd adverse case in C1 Thideer Nagar PS Cr.No.2375/2010 and the ground case in C1 Thideer Nagar PS Cr.No.2386/2010. However, I am aware that, that Tr.Bala @ Acid Bala has filed bail applications in the first two adverse cases and obtained bail already. Further, I am also https://hcservices.ecourts.gov.in/hcservices/ 3 aware through the statement of Tr.Paonnusamy father of Tr.Bala @ Acid Bala that he is making efforts to file bail applications in the above said 3rd adverse case and the ground case before the concerned court. Hence, there is a real possibility of his coming out on bail in the above said ground case and the 3rd adverse case, by filing bail applications, since in similar cases bail is granted by the concerned court or higher courts..." When there was no bail application filed or was pending, the observation made by the detaining authority that there was a real possibility of the detenu coming out on bail by filing a bail application in the above case is only an expression of apprehension passing in the mind of the detaining authority without any basis or material much less cogent material. Even if the detenu filed bail applications, the detaining authority could not foresee the nature of order to be passed by the Court. Thus, the order of detention does not reflect any subjective satisfaction of the detaining authority. Under the circumstances, the order of detention has got to be set aside. 7.Accordingly, the detention order in No.01/BDFGISSV/2011 dated 04.1.2011 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/- Deputy Registrar (Accounts) / TRUE COPY / Assistant Registrar To: 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2.The Commissioner of Police, Madurai City, Madurai. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Joint Secretary to Government, Public (Law & Order), Fort. St. George, Chennai-9. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. (asvm) H.C.P.(MD)No.64 of 2011 RP/25.05.2011/3P/6C. 25.4.2011 https://hcservices.ecourts.gov.in/hcservices/