Shobana,F/A.20 Yrs v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.10.2017

CORAM:

THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P. No.1260 of 2017 Shobana ... Petitioner -vs1.The State of Tamil Nadu Represented by its Secretary Prohibition and Excise Department (Home) Fort. St.George, Chennai - 600 009

2. The District Magistrate and District Collector Namakkal District, Namakkal.

... Respondents PRAYER: 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 2nd respondent dated 08.06.2017 in C.M.P.No.05/Goonda/2017/M1 against the husband of the petitioner Nickalsan, M/A 33, Son of Jayapal, who is confined at Central Prison, Salem and to set aside the same and consequently direct the respondents to produce the detenue before this Court and set him at his liberty. For Petitioner :

Mr.K.S.Kaviarasu 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 wife of the detenu, namely, Nickalsan, S/o. Jayapal, Male, aged about 33 years. The detenu has been detained by the 2nd respondent by his order in CMP.No.05/Goonda/2017/M1, dated 08.06.2017, 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 representation made by the petitioner was not considered in 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 08.06.2017. The petitioner made a representation, dated 14.07.2017 and the same was received on 17.07.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day, i.e., on 17.07.2017. The remarks were duly received on 07.08.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 16.08.2017.

6. It is the contention of the petitioner that there was a delay of 20 days in submitting the remarks by the Detaining Authority, of which 6 days were Government Holidays and hence there was an inordinate delay of 14 days in submitting the remarks. Thereafter, there was another delay of 8 days in considering the representation, of which 4 days were Government Holidays, hence, there was another inordinate delay of 4 days in considering the representation.

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 14 days in submitting the remarks by the Detaining Authority and 4 days in considering the representation.

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 C.M.P.No.05/Goonda/2017/M1 dated 08.06.2017, passed by the 2nd respondent is set aside. The detenu, namely, Nickalsan, Son of Jayapal, aged about 33 years, 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.

-s/d- Assistant Registrar(CS-IV) True Copy Sub-Assistant Registrar ga To:

1. The Secretary Prohibition and Excise Department (Home) Fort. St.George, Chennai - 600 009

2. The District Magistrate and District Collector Namakkal District, Namakkal

3. The Superintendent, Central Prison, Salem(In duplicate for communication to prison)

4. The Joint Secretary to Government Public(Law and order) Fort. St. George Chennai 9.

5. The Additional Public Prosecutor, Madras High Court, Madras H.C.P.No. 1260 of 2017 SP(10/10/2017)