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2012 DIGILAW 72 (MAD)

M. Suseela v. State of Tamil Nadu

2012-01-04

G.M.AKBAR ALI, K.MOHAN RAM

body2012
Judgment :- K. Mohan Ram, J. 1. The mother of the detenu is the Petitioner in the above Habeas Corpus Petition. 2. The detenu, came to the adverse notice of the authorities in four adverse cases, which are as follows: a. A case in Cr. No.11 of 2011 on the file of Sathangadu Police Station for the offence under Section 392, I.P.C. b. A case in Cr. No.185 of 2011 on the file of the Sathangadu Police Station for the offence under Sections 457 & 380, I.P.C. c. A case in Cr. No.206 of 2001 on the file of the Sathangadu Police Station for the offence under Sections 392, I.P.C. d. A case in Cr. No.684 of 2011 on the file of the Thiruvetiyur Police Station for the offence under Sections 379, I.P.C. 3. Thereafter, the detenu was arrested on 15.6.2011 at about 10.00 a.m. for committing various offences and a case was registered in Cr. No.272 of 2011 for the offences under Sections 341, 294(b), 336, 397 & 506 (ii), I.P.C. and he was produced before the Judicial Magistrate, Thiruvetiyur on the same day and he was remanded to judicial custody till 29.6.2011 and he was sent to Central Prison, Puzhal, Chennai. 4. The Sponsoring Authority submitted the relevant materials to the Detaining Authority and sought for detention of the detenu as he comes within the definition of Goonda under Section 2(f) of the Tamil Nadu Act 14 of 1982. 5. The Detaining Authority after perusing the materials submitted before him came to the subjective satisfaction that the detenu is a goonda as defined under the Act 14 of 1982 and came to the conclusion that there is compelling necessity to detain the detenu in order to prevent him from indulging in such activities which are prejudicial to the maintenance of public order under Section 2(f) of the Tamil Nadu Act 14 of 1982. 6. The detention order is being challenged in the above H.C.P. 7. Heard both. 8. The learned Counsel for the Petitioner submitted that the Petitioner made a representation dated 6.8.2011, to the Advisory Board seeking permission to engage a Counsel to appear on behalf of the detenu before the Advisory Board. The said representation was received by the Advisory Board on 9.8.2011. But, the said representation was neither considered by the Advisory Board nor any reply was received from the Advisory Board. 9. The said representation was received by the Advisory Board on 9.8.2011. But, the said representation was neither considered by the Advisory Board nor any reply was received from the Advisory Board. 9. The learned Counsel further submitted that while rejecting the representation of the Petitioner, the Government, namely, the First Respondent herein in its letter dated 14.10.2011 has stated that the representation was received by the Government on 25.8.2011, whereas the meeting of the Advisory Board was held on 24.8.2011. 10. The learned Counsel basing reliance on the decision of the Division Bench of this Court reported in Buvaneswari v. State of Tamil Nadu represented by the Secretary to Govt. of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-9 and three others, 2012 (2) LW (Crl.) 1429, submitted that when a representation is made to the Advisory Board seeking permission to have legal assistance by the detenu, it is the duty of the Advisory Board to consider the same and pass order and if no order is passed the detention order is liable to be set aside. 11. On the aforesaid submissions, the learned Additional Public Prosecutor was heard. 12. The learned Additional Public Prosecutor is not in a position to rebut, the legal contention put forth by the learned counsel for the Petitioner. 13. We have considered the aforesaid submissions and perused the materials available on record. 14. As rightly contended by the learned Counsel for the Petitioner, the petitioner has sent a representation, dated 8.8.2011 to the Advisory Board and the same has been received on 9.8.2011 by the Advisory Board as evident from the Postal Acknowledgement card produced before this Court. 15. Admittedly, the said representation has not been considered by the Advisory Board and no replay has been sent to the Petitioner by the Advisory Board. But it is seen from the letter of the First Respondent, dated 14.10.2011 that the representation of the Petitioner was received by the Government only on 25.8.2011 after the meeting of the Advisory Board, which was held on 24.8.2011. 16. It is the not the case of the Respondents that the Advisory Board considered the representation and passed any orders thereon. A perusal of the decision reported in Buvaneswari v. State of Tamil Nadu, represented by The Secretary to Govt. of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. 16. It is the not the case of the Respondents that the Advisory Board considered the representation and passed any orders thereon. A perusal of the decision reported in Buvaneswari v. State of Tamil Nadu, represented by The Secretary to Govt. of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-9 and three others, 2010 (2) LW (Crl.) 1429, shows that the Division Bench has relied upon the decision of the Apex Court reported in Kavitha v. State of Maharashtra and others, AIR 1981 SC 1641 : 1981 SCC (Cri) 743, wherein, the Apex Court has held that the representation made by the detenu for legal assistance before the Advisory Board has to be considered perfunctorily with due application of mind, since in each case of detention, the liberty of an individual is involved. Following the said dictum, the Division Bench has held as follows: “12. This Court is unable to see any reason to deviate from the earlier decision taken by the Court. Once the submission of a representation seeking legal assistance, to the Advisory Board, is an admitted fact, the Advisory Board should have considered the same and passed orders, but failed to do so. Hence, both the grounds have got to be applied in favour of the detenu.” 17. Following the said decision of the Apex Court, the Division Bench in Buvaneswari v. State of Tamil Nadu, represented by the Secretary to Govt. of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-9 and three others, 2010 (2) LW (Crl.) 1429, set aside the detention order. The said decision squarely applies to the facts of the case and applying the ratio laid down therein, the impugned detention order is set aside. In fine, the H.C.P. is allowed setting aside order of detention. The detenu is ordered to be released forthwith unless his custody is required in connection with any other case.