Vincent v. The State Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 04.06.2019

CORAM

THE HONOURABLE MR. JUSTICE M.M.SUNDRESH AND THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR HCP.No.40 of 2019 Vincent .. Petitioner/Father of detenue

Versus

1.The State of Tamil nadu rep.by its Additional Chief Secretary to Government Home, Prohibition and Excise Department Chennai 600 009.

2.The Commissioner of Police, Greater Chennai City, Vepery, Chennai-600 007.

.. Respondents Prayer:- Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling upon the production of the records relating to the detention order dated on 13.12.2018 made in detention order Memo No.BCDFGISSSV/1134/2018 passed by the 2nd respondent herein quash the same and direct the respondents to produce the body or person of the petitioners my son Vignesh @ Vigna, S/o, Vincent aged about 23 years branded as Goondas and now confined in Central Prison, Puzhal, Chennai, before this Court and set him at liberty forthwith.

For Petitioner :

Mr.P.Sundararajan For Respondents:

Mr.C.Iyyappa Raj, Additional Public Prosecutor

ORDER

[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the father of Vignesh @ Vigna, S/o, Vincent, aged 23 years, who is the detenu. The detenu has been detained by the second respondent by his order in Memo No.BCDFGISSSV/1134/2018, dated 13.12.2018 holding him to be a

"GOONDA", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

3. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel appearing for the petitioner would mainly focus his argument on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. The learned counsel, by placing authorities, submitted that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay.

4. The learned Additional Public Prosecutor opposed the Habeas Corpus Petition. He would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to the learned Additional Public Prosecutor, no prejudice has been caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

5. The Detention Order in question was passed on 13.12.2018. The petitioner made a representation on 02.01.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 07.01.2019. The remarks were duly received on the same day. Thereafter, the Deputy Secretary of Home, Prohibition and Excise (XIIIn) Department had dealt with the representation on 21.01.2019 (Column No.12) and the Minister for Electricity & Prohibition and Excise Department dealt with the same on 06.02.2019 (Column No.13). In between column no.12 and column no.13, there was a delay of 15 days in dealing with the said representation and passed the order rejecting the petitioner's representation on 07.02.2019.

6. It is the contention of the petitioner that there was a delay of 15 days in dealing with the representation by the Deputy Secretary, Home, Prohibition and Excise (XIII) Department and the Minister for Electricity & Prohibition and Excise Department, of which 4 days were Government Holidays and hence there was an inordinate delay of 11 days in dealing with the representation.

7. In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the Honourable Supreme Court has held that the procedural safeguards

are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities undertaken by the detenu.

8. In Sumaiya vs. The Secretary to Government (2007 (2) MWN (Cr.) 145), a Division Bench of this Court has held that the unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the order of detention.

9. In Tara Chand vs. State of Rajasthan and others, reported in 1980 (2) SCC 321, the Honourable Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.

10. In the subject case, admittedly, there is an inordinate and unexplained delay of 11 days in dealing with the second representation by the authorities of Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No.BCDFGISSSV/1134/2018 dated 13.12.2018, passed by the second respondent is set aside. The detenu, namely, Vignesh @ Vigna, S/o, Vincent aged about 23 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar //True copy// Sub Assistant Registrar sk To 1.The Additional Chief Secretary to Government Home, Prohibition and Excise Department Chennai 600 009.

2.The Commissioner of Police, Greater Chennai City, Vepery, Chennai-600 007.

3. The Joint Secretary to Government Public (Law & Order) Fort Saint George, Chennai-9

4. The Superintendent, Central Prison, Puzhal, Chennai 5.The Public Prosecutor High Court, Madras.

HCP.No.40 of 2019 PVS(CO) GMY(23/07/2019)