(Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records of the second respondent pertaining to the order made in C.P.O./T.C./LS/D.O.No.17/2007 dated 12.10.2007 in detaining the detenu under the Tamil Nadu Act 14 of 1982, as a Goonda and quash the same and direct the respondents to produce the detenu, namely, Kumar @ Kumaravel, son of Muruganandam, who is detained at the Central Prison, Tiruchirappalli before this Hon'ble Court and set him at liberty.)
D. Murugesan, J.
The petitioner is the mother of the detenu by name Kumar @ Kumaravel, S/o Muruganantham, who has been branded as a 'Goonda' and detained under sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) by the impugned order of detention dated 12.10.2007 passed by the second respondent, which is under challenge in this petition.
2. The detention order is questioned on the sole ground that neither the family members nor the relatives or known persons of the detenu were informed of the arrest. In the absence of such intimation, the detention order is vitiated.
3. Learned counsel for the petitioner submitted that he has made a specific ground that the arrest has not been intimated to the family members or relatives or known persons of the detenu and the said averment was not controverted in the counter affidavit. He would also submit that under similar circumstances, this Court has entertained a petition and quashed the detention order in H.C.P.No.129 of 2008 by order dated 25.6.2008.
4. We have heard the learned Additional Public Prosecutor for the respondents also.
5. Though the learned Additional Public Prosecutor has made an attempt to justify by stating that the family members were intimated through telegram, he has not placed any material to satisfy this Court as to whether any telegram was sent and the same was acknowledged either by the family members or relatives of the detenu. A right of intimation to the relatives or family members of the detenu encompasses itself the fundamental right guaranteed under Article 22(5) of the Constitution of India to make a representation to the detaining authority or the State Government, as the case may be. In the event the arrest is not intimated, the detenu would not be in a position to make any such representation and in that context, failure on the part of the detaining authority would amount to deprivation of the right of the detenu to make an effective representation guaranteed under Article 22(5) of the Constitution of India. On the facts of this case, a specific averment has been made that the intimation was not given. We also find that the said averment has not been controverter in the counter affidavit. Though the learned Additional Public Prosecutor submitted that the family members of the detenu were informed of the arrest through telegram, there are no materials placed before us to substantiate the said contention. Further, the copy of the telegram has also not been furnished to the detenu. In the absence of the same, we are unable to accept the contention of the learned Additional Public Prosecutor that the family members or the relatives of the detenu were informed of the arrest. Under these circumstances, the detention order is vitiated.
6. Accordingly, the habeas corpus petition is allowed and the impugned order of detention dated 12.10.2007 passed by the second respondent is set aside. The detenu shall be set at liberty forthwith, unless he is required in connection with any other case.
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