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.10 of 2011 Kamatchi :Petitioner -Vs- 1.The State of Tamilnadu Rep. by Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai – 9. 2.The District Collector and District Magistrate, Thanjavur District, Thanjavur. :Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records relating to the detention order passed by the second respondent in detention order P.D.No.24/2010 dated 20.12.2010 and quash the same and direct the respondents to produce the body of the detenu, Selvakumar @ Kumar, S/o.Arockiyaraj, now detain at Central Prison, Trichirappalli before this Court and set him at liberty. For petitioner :Mr.N.Ananda Kumar For respondents:Mr.Daniel Manoharan,Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN, J) The petitioner is the wife of the detenu. Challenging the Order of Detention in P.D.No.24/2010 dated 20.12.2010 passed by the second respondent branding the detenu, namely, Selvakumar (alias) Kumar, 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/wife of the detenu. 2.Learned counsel appearing for the petitioner, Mr.N.Ananda Kumar, argued that the detention order is liable to be set aside on the following grounds:- (i)There is an unexplained delay of 6 days in considering the representation of the detenu and therefore, the detention order is vitiated. (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 in Kumbakonam Taluk Police Station Crime No.508/2010 the https://hcservices.ecourts.gov.in/hcservices/ 2 detaining authority has stated that in similar cases bails are granted by the concerned Court or High Courts after lapse of time. 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 29.12.2010, remarks were called for on 30.12.2010 but remarks were received only on 10.1.2011. Thus, there was a delay of 10 days, out of which, 4 days happened to be holidays i.e. 1.1.2011, 2.1.2011, 8.1.2011 and 9.1.2011 and in effect, there was a delay of 6 days in considering the representation, which 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 Thiru Selvakumar (alias) Kumar is in remand as remand Prisoner in Central Prison, Tiruchirapalli. The bail application moved on behalf of him as detailed below: Sl No Name of Court Date of filing Disposal 1 Judicial Magistrate, Kumbakonam 16.11.2010 Dismissed on 16.11.2010 in C.M.P.No.11867/2010 2 Sessions Court, Thanjavur 13.12.2010 Bail has been granted on 14.12.2010 in Cr.M.P.No.3453/2010 Eventhough the Court has enlarged this Selvakumar (alias) Kumar on bail in the ground case, he continues in Prison in the case concerned in Kumbakonam Taluk Police Station Crime Number 508/2010. I am also aware that in similar cases bails granted by the concerned Court or High courts after lapse of time." When there was no bail application filed or was pending, the observation made by the detaining authority that "in similar cases bails granted by the concerned Court or High Courts after lapse of time." This is only an expression of apprehension https://hcservices.ecourts.gov.in/hcservices/ 3 passing in the mind of the detaining authority without any basis or material much less cogent material. Even if the detenu filed bail application, the detaining authority could not foresee the nature of order to be passed by the Court. Under the circumstances, the order of detention has got to be set aside. 7.Accordingly, the detention order in P.D.No.24/2010 dated 20.12.2010 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, Fort St.George, Chennai – 9. 2.The District Collector and District Magistrate, Thanjavur District, Thanjavur. 3.The Superintendent, Central Prison, Tiruchirapalli. 4.The Joint Secretary to Government, Public (Law and Order), Fort Saint George, Chennai-9. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. (asvm) RP/25.05.2011/3P/6C. H.C.P.(MD)No.10 of 2011 25.4.2011. https://hcservices.ecourts.gov.in/hcservices/