1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD)No.146 of 2011 S.Duraisamy .. Petitioner vs. 1.State of Tamil Nadu rep. By The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai – 600 009. 2.The District Magistrate & District Collector, Kanyakumari District, Nagercoil. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, directing the respondents to produce the detenue D.Vaikundamoni before this Court, now confined in the Central Prison, Palayamkottai and set him at liberty and to call for the records pertaining to the order of detention passed in P.D.No.11/2010 dated 12.09.2010 passed by the 2nd respondent and set aside the same. For petitioner : Mr.C.K.M.Appaji For respondents : Mr.P.Jothi Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN, J.) The petitioner is the father of the detenu, namely, Vaikundamani. Challenging an Order of Detention made by the second respondent in P.D.No.11/2010, dated 12.09.2010, branding the detenu 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. 2. Mr.C.K.M.Appaji, the learned counsel appearing for the petitioner attacked the order of detention firstly on the ground that the Detaining Authority has failed to consider the fact that there is no imminent possibility of the detenu coming out on bail. It is submitted that the petitioner has filed bail a application in the adverse cases and which is pending. Therefore, the reasons stated by the Detaining Authority that there is a real possibility of the detenu https://hcservices.ecourts.gov.in/hcservices/ 2 coming out on bail in all the cases pending against him and indulge in activities prejudicial to the maintenance of public order in future is mere ipse dixit of the detaining authority and without any cogent materials and this shows non-application of mind on the part of the detaining authority. The learned counsel in support of his contention, relied on the Full Bench decision of this Court reported 2005 MLJ (CRI.) 1101 (Thirupathi.K. Vs. District Magistrate and District Collector, Tiruchirapalli). 3.The second ground of attack on the order of detention was that there there is an unexplained delay of 8 days in considering the representation of the detenu and therefore, the detention order is vitiated. Apart from that, at another stage, there was delay of 13 days. Though File was circulated to Hon'ble Minister (Law, Courts and Prisons) on 28.01.2011, rejection letter served to the detenu only on 17.02.2011. In the interregnum, there was delay of 20 days, out of which 7 days were holidays, the remaining 13 days delay was not explained. 4. We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5. In order to appreciate the submissions made by the learned counsel appearing for the petitioner, we deal with the grounds one by one. 6. As far as the ground No.1 is concerned, in Paragraph No.4 of the detention order, the detaining authority has stated that the petitioner has filed a bail application before the Court of Judicial Magistrate, Eraniel and the same is pending and if he comes out on bail in future, he will indulge in such activities which would prejudicial to the maintenance of public peace and public order. 7.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)(cited Supra) it is held as follows:- "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." https://hcservices.ecourts.gov.in/hcservices/ 3 8.This aspect has also been dealt with in Narcotic Control Bureau Vs. Raju Alias Natarajan [(2006) 9 Supreme Court Cases 711] wherein the Hon'ble Supreme Court has observed as follows:- "4. In similar circumstances, this Court in T.V.Saravanan v. State [(2006) 2 SCC 664] directed the release of the detenu. Counsel for the State is unable to distinguish that judgment. This Court in T.V.Saravanan has held that 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 would be satisfied that the detenu was 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 order of detention." 9. It is well settled that if there is 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 detention order is vitiated and the mere ipse dixit of the detaining is not sufficient to sustain the order of detention. 10.Now, coming to the other ground raised by the learned counsel for the petitioner that there was a delay in considering the representation at two stages are concerned, 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 12.01.2011, remarks were called for on 14.01.2011 but remarks were received only on 25.01.2011. Thus, there was a delay of 13 days, out of which, 5 days happened to be holidays and in effect, there was a delay of 8 days in considering the representation, which remains unexplained. Apart from that, at another stage, there was delay of 13 days. Though File was circulated to Hon'ble Minister (Law, Courts and Prisons) on 28.01.2011, rejection letter was served to the detenue only on 17.02.2011. In the interregnum, there was delay of 20 days, out of which 7 days were holidays, the remaining 13 days delay was not explained. 11.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. The Courts have uniformly held that inordinate delay in the disposal of the representation would amount to breach of the Constitutional imperative and the same would under a continued detention impermissible and illegal. On that ground also, the impugned order of detention is liable to be quashed. 12.For the aforesaid reasons, we are of the view that detention order is vitiated and the same is liable to be set aside. Accordingly, the detention order in P.D.No.11/2010 dated 12.09.2010 https://hcservices.ecourts.gov.in/hcservices/ 4 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/- Assistant Registrar(P&A) /TRUE COPY/ Sub Assistant Registrar To 1.The Secretary to Government of Tamilnadu, Prohibition and Excise Department, Fort St.George, Chennai – 600 009. 2.The District Magistrate & District Collector, Kanyakumari District,Nagercoil. 3.The Superintendent, Central Prison, Palayamkottai. 4.The Joint Secretary to Govt., Public(Law and Order), Fort St.George, Chennai – 9. 5.The Director General of Police, Chennai. 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.C.K.M.Appaji, Advocate SR.No.21191 H.C.P.(MD)No.146 of 2011 01.07.2011 MPK PA/02.08.2011/4P/8C https://hcservices.ecourts.gov.in/hcservices/