Nithya v. The State Of Tamilnadu Rep.By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26.04.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Nithya ... Petitioner Vs.

1.The State of Tamil Nadu Rep. by its Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009 2.The Commissioner of Police Greater Chennai Vepery, Chennai - 7 3.The Superintendent of Prison Central Prison - II, Puzhal Chennai 600 066 4.The Inspector of Police, W23, All Women's Police Station Royapettah, Chennai 600 014 ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the entire records leading to the

detention of the petitioner's husband Rajesh Son of Kumar, Male, Aged about 38 years is presently lodged in Central Prison, Puzhal at Chennai and has been detained under Act 14/82 as a "Sexual Offender" vide detention order dated 17.11.2023 made in No.595/BCDFGISSSV/2023 by the 2nd respondent, the Commissioner of Police, Greater Chennai and quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Puzhal at Chennai. For Petitioner : Mr.C.C.Chellappan For Respondents : Mr.E.Raj Thilak, Additional Public Prosecutor Assisted by Mr.C. Aravind

ORDER

M.S.RAMESH, J.

AND SUNDER MOHAN , J.

The petitioner herein, who is the wife of the detenu namely Rajesh, aged about 38 years, S/o.Kumar, has come forward with this petition challenging the detention order passed by the second respondent dated 17.11.2023 slapped on her husband, branding him as "Sexual Offender" under Section (1) of Section 3 of the 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].

2. Heard the learned counsel for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel for the petitioner focused mainly on the ground that there is an unexplained delay in considering the representation of the petitioner, dated 18.12.2023. According to the learned counsel for the petitioner, though the representation is dated 18.12.2023, the same has been received by the Government only on 19.12.2023; the file has been dealt with by the Deputy Secretary on 22.12.2023 and the Minister concerned dealt with the file only on 29.12.2023 and the Rejection Letter was prepared on 29.12.2023 and sent to the detenu on 02.01.2024. It is the further submission of the learned counsel that the delay of 5 days in considering the representation remains unexplained and the same vitiates the detention

order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Rajammal Vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.

4. As per the submission of the learned counsel for the petitioner and on perusal of the records, we find that the representation of the petitioner is dated 18.12.2023, which was received by the Government on 19.12.2023 and further, the Minister concerned had dealt with the file of the detenu only on 29.12.2023 and the Rejection Letter was sent to the detenu on 02.01.2024. Thus, we find there is a considerable delay of 5 days in considering the representation of the petitioner. This delay of 5 days in considering the petitioner's representation remains unexplained.

5. It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of 6 days. Therefore, we have to hold that the delay has vitiated further

detention of the detenu.

6. In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows: "It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest."

As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here the inordinate delay of 5 days has not been properly explained at all.

7. Further, in a recent decision in Ummu Sabeena vs. State of Kerala-2011 STPL (Web) 999 SC, the Hon'ble Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be',

in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

8. In the light of the above discussion, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the petitioner.

9. Accordingly, the detention order passed by the second respondent on 17.11.2023 in No.595/BCDFGISSSV/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Rajesh, aged about 38 years, S/o.Kumar, is directed to be set at liberty forthwith, unless his confinement is required in connection with any other case. [M.S.R., J] [S.M., J] 26.04.2024 Index: Yes/No kas

To 1.The Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009 2.The Commissioner of Police Greater Chennai Vepery, Chennai - 7 3.The Superintendent of Prison Central Prison - II, Puzhal Chennai 600 066 4.The Inspector of Police W23, All Women's Police Station Royapettah, Chennai 600 014 5.The Public Prosecutor High Court of Madras Chennai 600 104

M.S.RAMESH, J.

and SUNDER MOHAN , J.

kas 26.04.2024