Murali Kannan v. The Secretary to Government

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 25.04.2011CORAM:THE HONOURABLE MR. JUSTICE S.RAJESWARANandTHE HONOURABLE MR. JUSTICE G.M. AKBAR ALIHabeas Corpus Petition (MD) No.61 of 2011Murali Kannan, S/o.Allimuthupillai...Petitionervs.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. .. RespondentsPrayer: This Habeas Corpus Petition is filed under Article 226 of theConstitution of India to issue a writ of habeas corpus calling for theentire records connected with the detention order of the Respondent No.2 inNo.04/BDFGISSV/2011, dated 04.01.2011, quashing the same and consequentlysetting the petitioner's son by name Karthik @ Koradu Karthik,S/o.Muralikannan, aged about 24 years, detained in Madurai Central Prison,at liberty.For Petitioner : Mr.R.AlagumaniFor Respondents : Mr.M.Daniel Manoharan, Addl.Public Prosecutor.O R D E R(Order of the Court was made by G.M.AKBAR ALI,J.)The petitioner, who is the father of the detenu, has filedthis petition challenging the order of detention, dated 04.01.2011, clampedby the 2nd respondent under the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Offenders, Goondas,Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14/1982), on the detenu branding him as a"Goonda" and directing him to be detained at the Central Prison, Madurai. 2.Mr.R.Alagumani, learned counsel for the petitioner,submitted that though many grounds have been raised in the petition, heconfines his submission on two grounds, namely (i) non-application of mindon the part of the detaining as to the real possibility of the detenucoming out bail; and (ii) inordinate delay in consideration of therepresentation of the detenu. It is submitted that when it is admittedby the detaining authority himself that the earlier bail application filedby the detenu in the ground case was dismissed and thereafter he has notfiled any application before any court of law, the conclusion arrived at bythe Detaining Authority that there is a real possibility of the detenucoming out on bail is mere ipse dixit of the detaining authority andwithout application of mind. In support of his submission, the learnedcounsel relied on the judgment of the Supreme Court in A.Shanthi v.Government of Tamil Nadu [(2006) 8 SCC 711]. https://hcservices.ecourts.gov.in/hcservices/ 2 3.Regarding delay, the learned counsel appearing for thepetitioner submitted that the delay in considering the representation madeby the detenu, received by the Government on 18.01.2011, which, accordingto the petitioner, vitiates the detention order. Learned counsel for thepetitioner submitted that though the concerned Minister has dealt with thefile on 08.02.2011, the rejection letter came to be prepared only on14.02.2011, after a delay of five days, and ultimately the same was servedon the detenu on 17.02.2011. Learned counsel submitted that the delayoccurred in communicating the result of consideration of the representationremains unexplained and this unexplained delay vitiates the order ofdetention.4.The learned Public Prosecutor would submit that theDetaining Authority has considered all the materials placed before him andafter analysing the same, the detaining authority has formed his opinion asto the possibility of the detenu coming out on bail and therefore there isnothing to interfere with the order of detention. Regarding the allegeddelay in communicating the result of consideration of the representation,there were two holidays in between 08.02.2011 and 14.02.2011 and thus therewere only three days delay, which is not an inexcusable delay. Therefore,according to the learned Additional Public Prosecutor, both the grounds arenot available to the petitioner and consequently the petition is liable tobe dismissed.5.We have heard the learned counsel for the petitioner aswell as the learned Additional Public Prosecutor for the respondents andgave our anxious consideration. 6.The petitioner, who is the father of the detenu, has comeforward with this petition to set aside the detention order dated04.01.2011. The grounds raised by the petitioner are that the DetainingAuthority has passed the impugned order mechanically and withoutapplication of mind and there is no cogent material to come to theconclusion that there is a real possibility of the detenu coming out onbail. Further, there is delay in communicating the result of considerationof the representation of the detenu. 7.It is by now well settled that in all detention laws, theorders of detention and its continuance should be in conformity withArticle 22 of the Constitution of India and even a slightest infraction ofthe constitutional protection enshrined therein would be a valid ground toset the detenu at liberty. Therefore, there must be cogent materialsbefore the Authority passing the detention order for inferring that thedetenu was likely to be released on bail. This inference must be drawnfrom materials on record and must not be ipse dixit of the Authoritypassing the detention order. In the decision relied on by the learnedcounsel for the petitioner [(2006) 9 SCC 711] cited supra, the Hon'bleSupreme Court has held as follows: "4.In similar circumstances, this Court inT.V.Saravanan v. State - [(2006) 2 SCC 664], directed releaseof the detenu. Counsel for the State is unable todistinguish that judgment. this Court in T.V.Saravanan hasheld that the "imminent possibility" of the appellant comingout on bail is merely the ipse dixit of the detaining https://hcservices.ecourts.gov.in/hcservices/ 3authority unsupported by any material whatsoever. There wasno cogent material before the detaining authority on thebasis of which the detaining authority could be satisfiedthat the detenu was likely to be released on bail. theinference has to be drawn from the available material onrecord. In the absence of such material on record the mereipse dixit of the detaining authority is not sufficient tosustain the order of detention."8.In the case of person in custody a detention order canvalidly be passed if the authority passing the order is aware of the factthat he is actually in custody; if he has reason to believe on the basis ofreliable material placed before him(a)that there is real possibility of his being released onbail, and(b)if it is felt essential to detain him to prevent him from sodoing. If the authority passes an order after recording itssatisfaction in this behalf,such and order cannot be struckdown on the ground that the proper course for the authoritywas to oppose the bail and if bail is granted notwithstandingsuch oppositions to question it before a higher court.9.Therefore the imminent possibility or real possibility ofthe detenu coming out on bail is to the subjective satisfaction of thedetaining authority and not on mere ipse dixit.10.That being the legal position, in the present case, whenthe bail application filed by the detenu was dismissed and he has not filedany further application after dismissal of the earlier bail application,the Detaining Authority, without any material, much less cogent materials,has recorded his subjective satisfaction as to the real possibility of thedetenu coming out on bail on mere ipse dixit and clamped the order ofdetention. In paragraph No.5 of the Grounds of Detention, the detainingauthority has observed as follows:"(5)I am aware that Thiru.Karthik @ Koradu Karthik,s/o.Muralikannan, is now in remand in the ground case in C4Thilagar Thidal Police Station Cr.No.3378/2010 and lodged atthe Central Prison, Madurai. Further, I am also aware thathe had obtained conditional bail in the above mentioned 2adverse cases and his bail application in the ground case inC4 Thilagar Thidal Police Station Cr.No.3378/2010 wasdismissed on 20.12.2010 vide Crl.MP No.6826/2010 by the JMNo.2, Madurai and he has not filed further bail applicationin the ground case before any court so far. However, I amaware through the sttement of Thiru.Muralikannan father ofKarthik @ Koradu Karthik that he is making efforts to filefurther bail application in the above said ground casebefore the concerned court. Hence, there is a realpossibility of his coming out on bail in the above saidground case, by filing further bail application, since insimilar cases bail is granted by the concerned court orhigher courts ...." https://hcservices.ecourts.gov.in/hcservices/

411.As rightly pointed out by the learned counsel for thepetitioner, the detenu has not filed bail applications in the above saidcases after dismissal of earlier application. In such circumstances, thesubjective satisfaction arrived at by the detaining authority as to thereal possibility of the detenu coming out on bail in the case is not basedon any materials as held by the Ho'ble Supreme Court in the decision citedsupra. Therefore, we are of the considered view that the impugneddetention order has been passed mechanically and without application ofmind and as such the detention order, dated 04.01.2011, is vitiated.12.Regarding the delay aspect, the learned Additional PublicProsecutor produced before us the pro-forma containing dates and events.It is seen from the said pro-forma, the representation of the detenu wasconsidered by the concerned Minister on 08.02.2011. However, the rejectionorder came to be prepared only on 14.02.2011. We are of the view thatpreparation of rejection letter is only a ministerial act and it does notrequire any judicious consideration. In such circumstances, the sameshould have been prepared on the next day and communicated the detenu.However, in this case such rejection letter was prepared after a delay offive days. Though it is submitted by the learned Additional PublicProsecutor that there were two holidays in between 08.02.2011 and14.02.2011, still there were three working days and there is noexplanation for such a delay occurred in preparing the rejection letter.13.In District Collector vs. S.K. Hasmath Beevi, reported in2001(5) SCC 401, the Supreme Court has held as follows:"Article 22(5) gives the detenu the right to make arepresentation against an order of detention and such rightmust be afforded as expeditiously as possible. In otherwords, the detenu must be afforded the earliest opportunity ofmaking a representation against the order of detention.Article 22(5) in itself does not say to whom a representationcould be made or who will consider the representation, butbecause of the language of Article 22(5) and because of thefact that an Order of detention affects the liberty of acitizen, without laying down any hard and fast rule as to themeasure of time taken by the appropriate authority forconsidering a representation, it should be considered anddisposed of by the Government as soon as it is received." 14.In Rajammal Vs. State of Tamil Nadu, reported in 1999 (1)SCC 417, the Apex Court has held that the representation was received bythe Secretary to the government on 05.02.1998, the government whichreceived the remarks from different authorities submitted the relevantfiles before the Under Secretary for processing it on the next day.Thereafter, the files were submitted to the minister, who received it ontour. Finding that there was no valid explanation for the delay from09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiatedthe detention. 15.Contending that even a delay of three days in disposal ofrepresentation would have the effect of vitiating order of detention,learned counsel for the petitioner has drawn our attention to the decisionof this Court in 2007(2)MWN(Cr.)145 – Sumaya Vs. The Secretary to Govt., https://hcservices.ecourts.gov.in/hcservices/ 5wherein the Division Bench has observed as under in paragraphs 5.3 and 5.4as under:"5.3.The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposalby the State Government. Expedition is the rule and delaydefeats mandate of Article 22(5) of the Constitution of India,vide Ram Sukrya Mhatre v.R.D. Tyagi, 1992 Supp.(3) SCC 65.5.4 Any inordinate and unexplained delay on the part of theGovernment in considering the representation renders thedetention illegal, vide Tara Chand v. State of Rajasthan, 1980(2) SCC 321, and Raghavendra Singh v. Supdt., Dist.Jail,l 1986(1) SCC 650."We are in respectful agreement with the view taken by the Division Bench. 16.Law is well settled that since personal liberty of aperson is involved in the preventive detention, the authorities concernedare required to deal with the representation with utmost dispatch andpromptitude, without any unnecessary delay. Right to expeditious disposalof the representation by the State Government includes the right tocommunication of the result of the representation. The unexplained delayin the consideration and disposal of the representation would have theeffect of vitiating the detention order and accordingly the detention orderis liable to be quashed.17.Accordingly, the habeas corpus petition is allowed andthe impugned order of detention, dated 04.01.2011, passed by the 2ndrespondent in his proceedings No.04/BDFGISSV/2011, is quashed. The detenuis directed to be set at liberty forthwith, unless his detention isrequired in connection with any other case.SDASST REGISTRAR ( CO )/TRUE COPY/SUB ASST REGISTRAR gbTo: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 Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.5.The Joint Secretary to Government Public (Law and Order)Fort St. George, Chennai.DM:2011:JUNE:16::Order inH.C.P.(MD)No.61 of 2011Dated:25.04.20115P:6C::