J.Nalini, F/A.32 Years v. State Of Tamil Nadu Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.10.2018

CORAM:

THE HONOURABLE Mr. JUSTICE C.T.SELVAM AND THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR H.C.P.No.1022 of 2018 J.Nalini W/o.Jayabal ... Petitioner -Vs1.State of Tamil Nadu Rep. by The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

2.Commissioner of Police, Greater Chennai, Chennai.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, directing the respondents to produce the petitioner's husband by name Jayabal @ Mint Jayabal, son of Natarajan, aged about 35 years before this Court now confined in Central Prison, Puzhal, Chennai set him at liberty and to call for the records pertaining to the order of detention passed in BCDFGISSSV No.273/2018 dated 30.04.2018 passed by the 2nd respondent and set aside the same. For Petitioner :

Mr.K.Thenrajan For Respondents:

Mr.M.Mohamed Riyaz Additional Public Prosecutor ***

ORDER

[Order of the Court was made by C.T.SELVAM, J.] The petitioner is the wife of the detenu herein, viz.Jayapal @ Mint Jayapal, Son of Natarajan, aged 35 years. The detenu has been detained by the second respondent by his order in No.273/BCDFGISSSV/2018, dated 30.04.2018, holding him to be a "GOONDA", as contemplated under Section 2(f) of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law

Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). The said order is under challenge in this Habeas Corpus Petition.

2. The detenu has come to adverse notice in the following cases:- S.No.

Police Station and Crime No.

Section of Law 1.

G-2 Periyamet Police Station Crime No.341/2016 341, 302 IPC r/w 120(b) IPC 2.

C-2 Elephant Gate Police Station Crime No.274/2018 392 IPC 3.

C-3 Sevenwells Police Station Crime No.220/2018 392 IPC he ground case has been registered against the detenu in Cr.No.223/2018 on the file of the C-3 Sevenwells Police Station for offences u/s 294(b), 392, 336, 427, 506(ii) r/w 397 IPC. The detention order has been passed by second respondent in No.273/BCDFGISSSV/2018.

3. We have heard learned counsel for the petitioner and learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority and counter affidavit filed by second respondent.

4. 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.

5. 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.

6. The Detention Order in question was passed on 30.04.2018. The petitioner made a representation, dated 09.07.2018 and the same was received on 11.07.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day. The remarks were duly received on 13.07.2018. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 30.07.2018.

7. It is the contention of the petitioner that there was an inordinate delay of 2 days in submitting the remarks by the Detaining Authority. Thereafter, there was yet another delay of 17 days in considering the representation, of which 6 days were Saturdays and Sundays and hence there was yet another delay of 11 days in considering the representation.

8. 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.

9. 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. 10. 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.

11. In the subject case, admittedly, there is an inordinate and unexplained delay of 2 days in submitting the remarks by the Detaining Authority and 11 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

12. In the result, the Habeas Corpus Petition is allowed and the order of detention in No.273/BCDFGISSSV/2018, dated 30.04.2018, passed by the second respondent is set aside. The detenu, namely Jayapal @ Mint Jayapal, Son of Natarajan, aged 35 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar kmi

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

2.Commissioner of Police, Greater Chennai, Chennai.

3.The Joint Secretary, Public (Law and order) Department, Secretariat, Chennai - 600 009.

4.The Public Prosecutor, High Court, Madras.

5.The Superintendent, Central Prison, Puzhal, Chennai.

H.C.P.No.1022 of 2018 RR rrs 27/11/18