KRISHNAN v. STATE OF TAMIL NADU — 1992 DIGILAW 424 (MAD)

Judgment :- K.M. NATARAJAN, J. ( 1 ) THIS writ petition is filed by the detenu himself under Article 226 of the Constitution of India for the issue of a writ of habeas corpus for quashing the order of detention dated 2/3/1992. ( 2 ) THE detenu came to the adverse notice as a bootlegger in view of the two cases referred to in the preamble and he was detained on the basis of the ground case, by the District Magistrate and Collector of Changalpattu MGR District at Kancheepuram, the second respondent herein in exercise of the powers conferred under section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1982 (Tamil Nadu Act XIV of 1982) with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of Public Order. ( 3 ) THE facts which led to the passing of the impugned order of detention have been set out in detail in the grounds of detention, which were duly served on the detenu and hence we do not propose to reiterate the same once again in this order. ( 4 ) THOUGH the learned counsel for the petitioner challenges the order of detention on various grounds he confined his arguments to grounds (j) and (k) wherein it is stated that the delay in considering the representation of the wife of the detenu dated 13/3/1992 vitiates the order of detention and that the failure to furnish the bail application and bail order and also the G. O. though asked for by the detenu through his wife within ten days is violative of Art. 22 (5) of the Constitution of India and hence the impugned Order of detention is liable to be quashed. ( 5 ) THE detaining authority has not filed any counter. The first respondent alone filed a counter wherein it is stated in para5 as follows: It is submitted that a representation dated nil from the detenus wife Tmt. Vijayakumari was received by the Government on 16/3/1992 through registered post. The Advisory Board reviewed the detenus case on 9/4/1992. The Government carefully examined the representation along with the connected records. The connected file was submitted to officers on 28/3/1992. The Deputy Secretary to Government has seen the file on 28/3/1992. The Secretary passed orders on 30/3/1992. Vijayakumari was received by the Government on 16/3/1992 through registered post. The Advisory Board reviewed the detenus case on 9/4/1992. The Government carefully examined the representation along with the connected records. The connected file was submitted to officers on 28/3/1992. The Deputy Secretary to Government has seen the file on 28/3/1992. The Secretary passed orders on 30/3/1992. After obtaining orders in circulation on 31/3/1992 rejecting the request of the detenus wife, the rejection order was issued in Government letter dated 1/4/1992. The second respondent was also requested to furnish the required documents requested in the representation. ( 6 ) A copy of the representation was produced by the detenu before this Court. We have also gone through the original representation made by the wife of the detenu and we find in view of the various challenges made in this writ petition and the allegations certainly warrant calling for the parawise remarks. There is no justification for not calling the parawise remarks and there is also no mention about the same in the order of detention. The failure to call for the parawise remarks and in view of the decision already taken by us in a similar proceedings would vitiate the order of detention. Further in the representation the wife of the detenu has requested for furnishing copies of bail application and the bail order where the detenu has set out his case in detail and also the Government Order in which delegation was made to the detaining authority to pass the impugned order. In the rejection order it is mentioned that the copy of the G. O. cannot be furnished. We do not find any justification in refusing to grant a copy of the G. O. on the ground that the detenu is not entitled to get the same. It is to be noted that the G. O. is a public document and the detenu cannot be asked to obtain a copy and make a representation when he has been detained. It is obligatory on the part of the detaining authority to furnish a copy of the document asked for. It is no answer that the copy of public document cannot be granted. Further the contention raised in the counter is completely at variance with the reasons given in the order of detention. It is obligatory on the part of the detaining authority to furnish a copy of the document asked for. It is no answer that the copy of public document cannot be granted. Further the contention raised in the counter is completely at variance with the reasons given in the order of detention. It is seen from the counter-affidavit that the second-respondent requested to furnish the required documents while in the order of rejection it is stated that they cannot be furnished to the detenu. Hence it is a dear case of non-application of the mind of the detaining authority. On this ground the impugned order of detention is vitiated. ( 7 ) FURTHER, there was a delay of twelve days in submitting the file to the officers. There is no explanation for this delay of 12 days from 16/3/1992 to 28/3/1992 and the papers were lying idle for two days and this delay would vitiate the order of detention as it is well settled that whenever a representation is received from the detenu it should receive active and continuous consideration while arriving at the subjective satisfaction and if there is any breach it would also vitiate the order of detention. Hence on both the above two grounds the impugned order of detention is liable to be quashed. ( 8 ) IN the result, the writ petition is allowed, the impugned order of detention is quashed and the detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. Petition allowed.