M.Saravanan v. The State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.06.2022

CORAM

THE HONOURABLE MR. JUSTICE PARESH UPADHYAY AND THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA H.C.P.NO.42 OF 2022 M.Saravanan .. Petitioner Vs

1. State Rep. By Secretary to Government Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The District Collector & District Magistrate, T.V. Malai District, T.V.Malai.

3. The Superintendent of Prison, Special Prison for Women, Thorapadi, Vellore.

4. The Superintendent of Police, T.V.Malai, T.V.Malai District.

5. The Inspector of Police, PEW Polur Police Station, Polur, T.V.Malai District.

.. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records in D.O.No.127/2021 - C2 passed by the second respondent on 24.12.2021 set aside the same and direct the respondents to produce the detenue Parimala, w/o. Late Shankar, aged 40 years, who is now detained in Special Prison for Women, Vellore, before this Court and set her at liberty.

For Petitioner : Ms.S.Nishanthi For Respondents : Mr.R.Muniyapparaj Addl. Public Prosecutor

ORDER

(Order of the Court was made by A.D.JAGADISH CHANDIRA, J.) The petitioner is the aunty of the detenue Parimala, W/o. Late Shankar, aged 40 years. The detenue has been detained by the second respondent by his order in D.O.No.127/2021-C2 dated 24.12.2021, holding her to be a "Bootlegger", as contemplated under Section 2(b) 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 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 on behalf of the detenue was not considered in time and there was an inordinate and unexplained delay.

4. The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. 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 detenue 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 24.12.2021. A representation was made on behalf of the detenue on 05.01.2022. Thereafter, remarks were called for by the detenue from the Detaining Authority on 10.01.2022. The remarks were duly received on 04.02.2022. Thereafter, the Government considered the matter and passed the order rejecting the representation on 18.04.2022.

6. It is the contention of the petitioner that there was a delay of 25 days in submitting the remarks by the Detaining Authority, of which, 9 days were Government Holidays and hence

there was an inordinate delay of 16 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 04.02.2022 and there was a delay of 73 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 24 days were Government Holidays, hence, there was an inordinate delay of 49 days in considering 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 detenue.

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 detenue 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 16 days in submitting the remarks by the Detaining Authority and unexplained delay of 49 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed.

In the result, the Habeas Corpus Petition is allowed and the order of detention in D.O.No.127/2021-C2 dated 24.12.2021, passed by the second respondent is set aside. The detenue, viz.,Parimala, W/o.Late Shankar, aged 40 years, is directed to be released forthwith unless her detention is required in connection with any other case.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar nsd/23

To

1. The Secretary to Government Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The District Collector and District Magistrate, T.V. Malai District, T.V.Malai.

3. The Superintendent of Prison, Special Prison for Women, Thorapadi, Vellore.

4. The Superintendent of Police, T.V.Malai, T.V.Malai District.

5. The Inspector of Police, PEW Polur Police Station, Polur, T.V.Malai District.

6. The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

7. The Public Prosecutor, High Court, Madras.

H.C.P.No.42 of 2022 SKM(CO) PM/04/07/2022