Murugesan v. The Secretary To The Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.07.2022 Coram:

The Honourable Mr. Justice S.VAIDYANATHAN and The Honourable Mr. Justice A.D.JAGADISH CHANDIRA H.C.P.No.107 of 2022 Murugesan .. Petitioner Vs.

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

2. The Commissioner of Police, Greater Chennai.

3. The Superintendent of Prison, Central Prison - Puzhal, Chennai -66.

4. The Inspector of Police, L&O, S-10, Pallikaranai Police Station, Chennai.

.. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records, in connection with the order of detention passed by the second respondent dated 08.12.2021 in B.C.D.F.G.I.S.S.S.V. No.381/2021 against the petitioner Son Kamalakannan, male aged 25 years, S/o.Murugesan, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenue before this Court and set him at liberty. For Petitioner : Mr. S.Senthilvel For Respondents : Mr. M.Babu Muthumeeran Additional Public Prosecutor

ORDER

(Hearing was made through Hybrid mode) S.VAIDYANATHAN, J., and A.D.JAGADISH CHANDIRA, J., The petitioner is the grandmother of the detenu Kamalakannan, male aged 25 years, S/o.Murugesan. The detenu has been detained by the second respondent by his order in BCDFGISSSV No.381/2021 dated 08.12.2021 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 08.12.2021. The petitioner made a representation on 21.01.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 21.01.2022. The remarks were duly received on 04.02.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 18.04.2022.

6. It is the contention of the petitioner that there was a delay of 15 days in submitting the remarks by the Detaining Authority, of which 5 days were Government Holidays, hence there was a delay of 10 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 an inordinate delay of 73 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise (X) Department after the Deputy Secretary dealt with it, of which 22 days were Government Holidays, hence, there was inordinate delay of 51 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 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 10 days in submitting the remarks by the Detaining Authority and unexplained delay of 51 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise (X) 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 BCDFGISSSV No.381/2021 dated 08.12.2021, passed by the second respondent is set aside. The detenu, viz., Kamalakannan, male aged 25 years, S/o.Murugesan, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar bkn

To

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

2. The Commissioner of Police, Greater Chennai.

3. The Superintendent of Prison, Central Prison - Puzhal, Chennai -66.

4. The Inspector of Police, L&O, S-10, Pallikaranai Police Station, Chennai.

5.The Public Prosecutor, High Court, Madras.

6.The Joint Secretary to Government, Public (Law and Order) Dept., Fort St.George, Chennai-7.

H.C.P.No.107 of 2022 JP-II(CO) SB(20/07/2022)