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)Nos.47 and 48 of 2011 H.C.P.(MD)No.47 of 2011: Mariyammal ... Petitioner Vs. 1.The Government of Tamil Nadu, Rep.by its Secretary, Home Prohibition to Excise Department, St.George Fort, Chennai 9. 2.The District Magistrate and District Collector, Thoothukudi District, Thoothukudi. 3.The Inspector of Police, Kovilpatti West Police Station, Kovilpatti, Thoothukudi District. ... Respondents PRAYER: The Habeas Corpus petition is filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the detention order vide HS (M) confdl.No.46/2010 dated 15.11.2010 passed by the 2nd respondent and quash the same and produce the detenu by name Chinnarasu @ Chinrasu, son of Muthupandi @ Kudavandi Muthupandi Thevar, Hindu aged 24 years confined at Central Prison, Palayamkottai and set him at liberty. H.C.P.(MD)No.48 of 2011: Ramachandran @ Arulraj ... Petitioner Vs. 1.The Government of Tamil Nadu, Rep.by its Secretary, Home Prohibition to Excise Department, St.George Fort, Chennai 9. 2.The District Magistrate and District Collector, Thoothukudi District, Thoothukudi. https://hcservices.ecourts.gov.in/hcservices/ 2 3.The Inspector of Police, Kovilpatti West Police Station, Kovilpatti, Thoothukudi District. ... Respondents PRAYER: The Habeas Corpus petition is filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the detention order vide HS (M) confdl.No.47/2010 dated 15.11.2010 passed by the 2nd respondent and quash the same and produce the detenu by name Marimuthu, son of S.Ramachandran, Hindu aged 24 years confined at Central Prison, Palayamkottai and set him at liberty. For Petitioners : Mr.R.Venkateswaran For Mr.G.Thiruvarutselvan For Respondents : Mr.M.Daniel Manoharan,APP COMMON ORDER (Order of the Court was made by G.M.AKBAR ALI, J) Since the facts and circumstances of both the Habeas Corpus Petitions are one and the same, a common order is being passed in both the Habeas Corpus Petitions. 2. The petitioner in HCP No.47 of 2011 is the mother of the detenu, namely, Chinna Raj @ Chinrasu and the petitioner in HCP No.48 of 2011 is the father of the detenu, namely, Marimuthu, who were detained by an order of the second respondent dated 15.11.2010 in H.S.(D)Confdl.No.46&47/2010, respectively, 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) branding the detenus as “Goonda”. 3. Challenging the order of detention, Mr.R.Venkateswaran, the learned counsel appearing for the petitioners mainly raised the following two grounds, as vitiated:- The first ground is, the delay in considering the representation of the detenus and the other ground is that when the detaining authority was considering the real possibility of the detenus to come out of bail that there was a bail application is pending. In so far as the first ground is concerned, the learned counsel for the petitioners, relying on the proforma produced by the learned Additional Public Prosecutor before this Court, would submit that the remarks were placed before the Hon'ble Minister for Law on 07.01.2011 for which, the rejection letter was prepared only on 14.01.2011 and therefore, there is a delay of seven days in considering the representation, which remains unexplained. https://hcservices.ecourts.gov.in/hcservices/ 3 4. 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. Mr.R.Venkateswaran, learned counsel for the petitioners would further submit that the petitioners have not filed any bail application in any of the adverse cases and even in the ground case, the bail petitions were dismissed by the learned Magistrate on the ground that there is no possibility for the petitioners to file bail applications in the higher judicial forum to obtain bail. According to the learned counsel, drawing inference by the detaining authority is non-application of mind and there is no possibility for the petitioners to come out of bail to indulge in future activities, which will prejudice to the public order. 6. On the contrary, the learned Additional Public Prosecutor would submit that the petitioner in HCP.No.47 of 2011 had involved in a case in Crime No.1412 of 2009, for the offence punishable under Sections 341, 294(b), 323, 506(i) I.P.C., and subsequently, involved in three adverse cases of similar in nature and the ground case is also similar in nature and similarly, the petitioner in HCP.No.48 of 2011 had involved a case in Crime No.718 of 2009, for the offence punishable under Sections 147, 148, r/w 307 I.P.C., and Section 3(2) (v), 3(1)(x) of SC/ST Act, and subsequently, involved in another adverse case of similar in nature and the ground case is also similar in nature. The learned Additional Public Prosecutor also pointed out that the petitioners were granted bail in the first adverse case, which would show that there are real possibility for the petitioners to come out of bail. The learned Additional Public Prosecutor also submitted that the bail applications filed by the detenus in the ground case were dismissed. Considering the bail application granted in earlier adverse case of similar in nature and there are real possibility of the detenus to come out of bail, which was considered by the detaining authority and hence, there is no illegality in the detention orders. 7. However, the learned Additional Public Prosecutor would submit that the remark was placed before the Hon’ble Minister for Law on 07.01.2011 for which, the rejection letter was prepared on 15.01.2011 and considering the intervening holidays of 08.01.2011 and 09.01.2011, there is a delay of 5 days. 8. Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor for the State. 9. As far as the delay is concerned, it is evident that the remarks has been placed before the Hon’ble Minister for Law on 07.01.2011 and the rejection letter was prepared only on 14.01.2011 and hence, there is a delay of 7 days. However, even after giving concession to the intervening holidays on 08.01.2011 and 09.01.2011, there is a clear delay of 5 days, which is not properly explained by the authorities. In our considered view, the delay is inordinate, https://hcservices.ecourts.gov.in/hcservices/ 4 which vitiates the entire proceedings while considering the representations of the detenus. 10. As far as considering the bail application is concerned, there was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenus were 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 sufficient to sustain the orders of detention. 11. Considering the above facts and circumstances, since there is an inordinate delay in considering the representations of the detenus, which affects the rights, the detention orders are vitiated and liable to be set aside. 12. Hence, the petitions are allowed and the order of detention dated 15.11.2010 passed by the 1st respondent in Detention Order in HS(M) confdl.No.46/2010 and HS(M) confdl.No.47/2010 are quashed. The detenus are directed to be released forthwith unless their presence is required in connection with any other case. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar TO 1. THE SECRETARY, GOVERNMENT OF TAMIL NADU HOME PROHIBITION OF EXCISE DEPT., ST.GEORGE FORT, CHENNAI-9. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, THOOTHUKUDI DISTRICT, THOOTHUKUDI. 3. THE INSPECTOR OF POLICE, KOVILPATTI WEST POLICE STATION, KOVILPATTI, THOOTHUKUDI DISTRICT. 4. THE SUPERINTENDENT, CENTRAL PRISON, PALAYAMKOTTAI. 5. THE JOINT SECRETARY TO GOVERNMENT, PUBLIC (LAW & ORDER), FORT ST.GEORGE, CHENNAI - 9. 6. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. H.C.P.(MD)NoS.47 & 48 of 2011 14.03.2011 nbj/MPK NSV/2.5.11/4P/7C https://hcservices.ecourts.gov.in/hcservices/