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Judgment
Ratnavel Pandian, J.—This writ petition is filed by the wife of the detenu, Madathi, under Art. 226 of the Constitution of India, seeking the
issuance of a writ of habeas corpus, quashing the order of the first respondent and setting the detenu Arunachalam at liberty.
The impugned order of detention has been made by the first respondent, in exercise of the powers conferred by S. 3(1) of the Tamil Nadu Act
14 of 1982 with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
According to the detenu, the detenu is a bootlegger and he has come to adverse notice in three cases apart from the case set out in the grounds
of detention. Mr. Gomathinayagam, Learned Counsel for the petitioner, would confine his arguments to only one contention, viz that the failure on
the part of the second respondent, while confirming the order of detention, to consider the written representation made by the detenu before the
Advisory Board, vitiates the detention order. He has taken this ground in paragraph 9 of the affidavit in support of the writ petition. By way of
reply, the second respondent has stated in his counter as follows:
The Advisory Board perused the grounds of detention, the report of the detaining authority to the Government, the written representation of the
detenu presented to the Advisory Board in person on 23rd January, 1987 and the connected records and also heard the oral representation of toe
detenu on 23rd January, 1987.... In this connection, it is submitted that the detenu has presented a written representation before the Advisory
Board on the date of the hearing of his case (i.e., on 25th January, 1987.) He has not sent any written representation to the Government. The
Advisory Board has considered his representation along with other connected records etc. The Advisory Board has sent only its report and the
opinion and not the detenu''s representation to the Government. As such the Government have no opportunity to examine the detenu''s
representation. Further, it is submitted that there is no law prescribing that the detenu''s representation has to be considered by the Government
twice as stated by the petitioner in this behalf.
It is admitted that no representation was submitted by the detenu to the Government. But admittedly, a representation was presented to the
Advisory Board in person on 23rd January, 1987 when he appeared before the Advisory Board. From the counter of the second respondent, it is
clear that the representation submitted before the Advisory Board was not forwarded to the Government at all. The law requires that the
representation of the detenu should be considered by the Government even at the time of the passing of the confirmation order, but the
Government could not do so, since the representation has not been forwarded by the Advisory Board. The copy of the confirmation order served
on the detenu as well as the original found on the file show that the representation given by the detenu to the Advisory Board has not been
considered by the Government at all, obviously for the reason that the representation has not been forwarded to the Government along with the
other records and the opinion of the Advisory Board. Since the opinion of the Advisory Board discloses that a written representation has been
made by the detenu, even if the Board has failed to send it, the Government ought to have sent for the same, considered it, and then passed a final
order. The counter also indicates that the Government was aware that there was a written representation. Under these circumstances, we are of
the view that the non-consideration of the representation of the detenu is violative of the constitutional provisions, and as such the order is vitiated.
In the result, the order of detention is set aside and the detenu is directed to be set at liberty forthwith. The writ petition is allowed.