Selvi, F/A.49 Years v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.10.2017

CORAM:

THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P. No.1253 of 2017 Selvi ... Petitioner -vs1.The Secretary to the Government, Home Prohibition and Excise Dept., Secretariat, Chennai 600 009.

2.District Collector and District Magistrate, Kancheepuram District, Kancheepuram.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the records in connection with order of detention passed by the second respondent 28.06.2017 in B.C.D.F.G.I.S.S.S.V. No. 55 / 2017 against the petitioner son Karthick @ Karuppu Karthick, Male aged 25 years S/o.Rajendran who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before this Court and set him at Liberty.

For Petitioner :

Mr.S.Senthilvel For Respondents :

Mr. V.M.R.Rajendran Additional Public Prosecutor

O R D E R

(Order of the Court was made by N.SATHISH KUMAR, J) The petitioner is the mother of the detenu, namely, Karthick @ Karuppu Karthick, Male aged 25 years S/o.Rajendran. The detenu has been detained by the second respondent by his order in B.C.D.F.G.I.S.S.S.V. No. 55 / 2017 dated 28.06.2017, holding him to be a "Goonda", as contemplated under 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 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 representations made by the petitioner was not considered on time and there was an inordinate and unexplained delay with regard to the same.

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 28.06.2017. The petitioner made a representation, dated Nil and the same was received on 11.07.2017 and thereafter, made an another representation dated 05.07.2017 and the same was received on 19.07.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 05.07.2017 in respect of the first representation. Insofar as the second representation is concerned, remarks were called for on 19.07.2017. The remarks were duly received on 17.07.2017 in respect of the first representation. Insofar as the second representation, remarks were duly received on 01.08.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representations on 18.07.2017 & 23.09.2017.

6. It is the contention of the petitioner that in respect of the first representation there was a delay of 12 days in submitting the remarks by the Detaining Authority, of which 04 days were Government Holidays and hence there was an inordinate delay of 08 days in submitting the remarks. Insofar as the second representation is concerned there was a delay of 13 days in submitting the remarks by the Detaining Authority, of which 04 days were Government Holidays and hence there was an inordinate delay of 09 days in submitting the remarks.

7. In Rekha vs. State of Tamil Nadu, reported in 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, reported in 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 08 days in submitting the remarks by the Detaining Authority in respect of the first representation. Insofar as the second representation is concerned, there is an inordinate and unexplained delay of 09 days in submitting the remarks by the Detaining Authority. 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 B.C.D.F.G.I.S.S.S.V. No. 55 / 2017 dated 28.06.2017, passed by the second respondent is set aside. The detenu, namely, Karthick @ Karuppu Karthick, Male aged 25 years S/o.Rajendran, is directed to be released forthwith unless his detention is required in connection with any other case. Given the nature of the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.

Sd/-- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar rkp/vsm To:

1.The Secretary to the Government, Home Prohibition and Excise Dept., Secretariat, Chennai 600 009.

2.District Collector and District Magistrate, Kancheepuram District, Kancheepuram.

3.The Superintendent, Central Prison, Vellore.

4.The Additional Public Prosecutor, Madras High Court, Madras H.C.P. No.1253 of 2017 GN(25/10/2017)