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Judgment
K. Mohan Ram, J.—The mother of the detenu is the Petitioner in the above Habeas Corpus Petition. 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 u/s 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 u/s 392, I.P.C.
d. A case in Cr. No. 684 of 2011 on the file of Thiruvetiyur Police Station for the offence u/s 379, I.P.C.
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.
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 u/s 2(f) of the Tamil Nadu Act 14 of 1982.
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 u/s 2(f) of the Tamil Nadu Act 14 of 1982.
The detention order is being challenged in the above H.C.P.
Heard both.
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.
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.
The learned Counsel basing reliance on the decision of the Division Bench of this Court reported in Buvaneswari Vs. State of Tamil Nadu ,
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.
On the aforesaid submissions, the learned Additional Public Prosecutor was heard.
The learned Additional Public Prosecutor is not in a position to rebut, the legal contention put forth by the learned counsel for the Petitioner.
We have considered the aforesaid submissions and perused the materials available on record.
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.
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.
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 Vs. State of Tamil Nadu shows that the Division Bench has relied upon the decision of the Apex Court
reported in Smt. Kavita Devidasani Vs. State of Maharashtra and Others, , 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:
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.
Following the said decision of the Apex Court, the Division Bench in Buvaneswari v. State of Tamil Nadu, represented by the Buvaneswari Vs.
State of Tamil Nadu 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
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.