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2007 DIGILAW 2562 (MAD)

Mary & Others v. The Government of Tamil Nadu, rep. by its Secretary to Government, Chennai & Another

2007-08-14

P.K.MISRA, R.BANUMATHI

body2007
Judgment :- R. Banumathi, J. These Habeas Corpus Petitions have been filed challenging the detention orders dated 30.01.2007, whereby the detainees were detained, branding them as Goonda, as contemplated under Section 2(f) of the Act 14/1982. Since the detainees are similarly placed, the Habeas Corpus Petitions shall stand disposed of by this common order. 2. The detainees had earlier come to adverse notice in nine theft cases in G.7 Chetpet P.S. - Cr.Nos.155/2006 and 480/2006; G.3 Kilpauk P.S. -Cr.Nos.944/2006, 1027/2006, 1076/2006, 1202/2006 and 49/2007; K-2 Ayanavaram P.S. -Cr.No.935/2006, 996/2006. The ground case relates to the occurrence on 20.01.2007 on which date, the detainees are alleged to have threatened the complainant Rajasekar and put him in the instant fear of hurt and brandishing knives, relieved him of gold chain and cash of Rs.200/-. The ground case was registered in G.3 Kilpauk P.S. -Cr.No.52/2007 for offences under Section 341, 336, 427, 397 and 506(2) IPC and all three detainees were arrested and remanded to judicial custody. On being satisfied that the detainees are acting in a manner prejudicial to the maintenance of public order, the impugned detention orders were clamped on them. 3. Even though several contentions were raised and argued as well, the learned Counsel for the petitioners mainly submitted that the detention orders are unsustainable in view of non-application of mind on vital aspects. The learned Counsel interalia raised the following contentions:- Pre-detention representations sent by the relatives of the detainees dated 25.01.2007 were not considered; The satisfaction of possibility of detainees being released on bail is the ipse dixit of the Detaining Authority; and While the detainees were remanded in several cases, the Detaining Authority recorded its satisfaction as to the likelihood of being released on bail in Cr.No.52/2007 and the possibility of being released on bail is a vague statement. 4. Taking us through the grounds of detention and relevant file, the learned Addl. Public Prosecutor has submitted that the detainees were remanded only in connection with ground case Cr.No.52/2007. Placing before us the rejection letter dated 07.03.2007, the learned Addl. Public Prosecutor submitted that only the representation dated 19.02.2007 was received by the Government and the representation dated 25.01.2007 was not at all received and hence there was no question of consideration of that representation. .5. Placing before us the rejection letter dated 07.03.2007, the learned Addl. Public Prosecutor submitted that only the representation dated 19.02.2007 was received by the Government and the representation dated 25.01.2007 was not at all received and hence there was no question of consideration of that representation. .5. The learned Counsel for the petitioners submitted that the pre-detention representation dated 25.01.2007 was sent to Detaining Authority and it failed to consider the same, which would render the detention order illegal. In support of his contention, the learned Counsel for the petitioners has produced a typed copy of the undated representation and submitted that there is a mention of pre-detention representation dated 25.01.2007. In the said undated representation it is stated, However, no postal receipt or acknowledgment had been produced, showing any such representation dated 25.01.2007 was sent to the Detaining Authority or to the Government. 6. Submitting that receipt and acknowledgment had been misplaced, the learned Counsel for the petitioners has produced a copy of the reply sent by the General Post Office [GPO] dated 21.05.2007. In the said letter, GPO has called for certain particulars and also asked the counsel to prefer a complaint at the office of booking for necessary enquiries. 7. When the matter was previously heard, the learned Additional Public Prosecutor had represented that the Government had not received any representation dated 25.01.2007. After the matters were reserved for orders, the learned counsel for the petitioners has produced acknowledgment for having received representation dated 25.01.2007. Thereafter, the matter was listed again under the caption “for being mentioned”. 8. We have directed the learned Additional Public Prosecutor to verify the Receipt Register as to the receipt of pre-detention representation. In response, the learned Addl. Public Prosecutor has filed affidavit of the Sponsoring Authority admitting receipt of pre-detention representation dated 25.01.2007 addressed to the Detaining Authority, which was received on 29.01.2007. The Receipt Register was also produced for our perusal. Though pre-detention representation [dated 25.01.2007] was received by the Detaining Authority/Commissioner of Police, the same was not at all considered before the passing of the Detention Order on 30.01.2007. .9. The Receipt Register was also produced for our perusal. Though pre-detention representation [dated 25.01.2007] was received by the Detaining Authority/Commissioner of Police, the same was not at all considered before the passing of the Detention Order on 30.01.2007. .9. In the affidavit of the Sponsoring Authority, it is stated that since address of the sender is Thiruvotriyur and the said representation was forwarded to the Deputy Commissioner of Police, Washermanpet for enquiry and report, and thereafter, the said representation was forwarded to Deputy Commissioner of Police, Kilpauk District, on the point of jurisdiction. Admittedly, the representation was not placed before the Detaining Authority for consideration before passing the detention order. It is alleged that the omission to place representation before the Detaining Authority was not deliberate, but only due to administrative reasons. We find it difficult to accept the explanation. We are of the view that non-consideration of pre-detention representation would vitiate the detention order. 10. The use of the words ‘as soon as may be’ under Article 22(5) is important, since it affords an opportunity to the detenu to make an effective representation against the detention order at the earliest. The words ‘earliest opportunity’ contemplates opportunity to make a representation against the detention order to the Government. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. In a catena of cases, Madras High Court has taken the view that pre-detention representation ought to be placed before the Detaining Authority for consideration. In the present case, the pre-detention representation has not at all been dealt with by the Detaining Authority with reasonable promptness and diligence. The detention order is vitiated due to non-consideration of pre-detention representation. 11. For the foregoing reasons, these HabeasCorpus Petitions are allowed and the impugned detention orders are likely to be quashed. The detenus are directed to be set at liberty forthwith unless they are required in connection with any other case.