JUDGMENT (Dr. ARIJIT PASAYAT, J.)

1. Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court allowing the Habeas Corpus Petition filed by the respondent questioning the order of detention i.e. Detention Order 519/BDFGIS/99 dated 9.7.1999 passed by the Commissioner of Police, Chennai.

2. Background facts in a nutshell are as follows:

The respondent (hereinafter referred to as the `detenu) was detained under sub-section (1) of Section 3 of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (in short the `Act). The only point urged before the High Court was that an order of detention was passed on 9.7.1999 and on 6.7.1999 the mother of the detenu had sent a representation to the Chief Minister of Tamil Nadu. A copy of the representation was marked to the Director General of Police, Chennai, the Advisory Board under the Act as well as the Chief Justice of the High Court. It was, therefore, submitted that there was evidence of dispatch of the representation and since it was not considered by the detaining authority the order of detention was bad.

The stand of the detaining authority was that the representation was not sent to the detaining authority and, therefore, there was no question of considering the same before passing the order of detention.

The High Court found that since two of the authorities had received the representation it must be presumed that the Director General of Police would have received the representation in the usual course. A presumption was drawn that the Director General of Police had been served the representation and accordingly it was held that the Director General of Police must have received the representation and since that was not taken note of, there was violation of Article 22(5) of the Constitution of India, 1950 (in short the `Constitution). Accordingly, the order of detention was quashed.

The State of Tamil Nadu and the detaining authority have challenged the correctness of the order of the High Court. Notice was issued by this Court on 4.9.2000. When the matter was taken up subsequently on 11.12.2000, it was noted that the detenu was not represented and there was no appearance on behalf of the detenu, though he was served. The Bench also noted that the period of detention was also over and the detenu had been released. The Court further noted that it would be proper to appoint Mr. K.K. Mani, Advocate as Amicus Curiae.

3. Learned counsel for the appellants submitted that the approach of the High Court is clearly wrong. There was no question of any representation even before the order of detention was passed and there was no question of sending it to the Advisory Board.

4. Learned Amicus Curiae submitted that since the representations sent to the Chief Minister and the Advisory Board amongst others had been received, the High Court found that the Director General of Police is presumed to have received the notice. Therefore, impugned order cannot be faulted. We find that the High Courts order proceeds on presumption. Merely because two of the addressees had received the representations that in no way shows that the Director General of Police had received the representation. Additionally, as rightly submitted by learned counsel for the appellant-State, before the order of detention was passed there is no question of sending a representation to the Advisory Board. This appears to be clever use to create evidence to contend non-application of mind. This is a classic case, (such cases are increasing by leaps and bounds) where red-hearings are intentionally drawn to deflect the course of justice. In Sri Anand Hanumathsa Katar v. Additional District Magistrate and Ors. (2006 (10) SCC 725) it was observed by this Court as follows:

"11. At this juncture it would be relevant to take note of paras 17 to 19 of Union of India v. Paul Manickam (2003 (8) SCC 342) They rea