Sivanandam, M/A 42 Years, v. The State Rep By Its,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 09.10.2017 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.1318 of 2017 Sivanandam ... Petitioner Vs.

1.State Rep. By Secretary to Government Home Department, Prohibition and Excise Wing, Secretariat, Chennai - 600 009.

2.The Commissioner of Police, Chennai Police, Office of the Commissioner of Police, (Goondas Section) Vepery, Chennai - 600 007.

...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 second respondent dated 22.05.2017 in Memo BCDFGISSSV No.291 of 2017 against the petitioner's son namely Prakash, S/o.Sivanandham aged about 22 years and he is presently confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondent to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr.N.Selvarajan For Respondents : Mr.V.M.R.Rajentran, Addl. Public Prosecutor.

O R D E R

(Order of the Court was made by N.SATHISH KUMAR, J) The petitioner is the father of the detenu, namely, Prakash, Son of Sivanandam, male, aged about 23 years. The detenu has been detained by the second respondent by his order in BCDFGISSSV No.291 of 2017 dated 22.05.2017, 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 22.05.2017. The petitioner made four representations, dated 25.05.2017, 10.06.2017, 19.06.2017 & 25.05.2017 respectively and the same was received on 31.05.2017, 19.06.2017, 22.06.2017 & 17.07.2017 respectively. Thereafter, remarks were called for by the Government from the Detaining Authority on 31.05.2017 in respect of the first representation. Insofar as the second representation is concerned, remarks were called for on 19.06.2017. Insofar as the third representation is concerned, remarks were called for on 22.06.2017 The remarks were duly received on 06.06.2017 in respect of the first representation. Insofar as the second representation, remarks were duly received on 27.06.2017. Insofar as the third representation, remarks were duly received on 03.07.2017. Insofar as the fourth representation, remarks were duly received on 17.07.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representations on 21.06.2017, 30.06.2017, 06.07.2017 & 24.08.2017.

6. It is the contention of the petitioner that in respect of the first representation there was a delay of 6 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was an inordinate

delay of 4 days in submitting the remarks. Insofar as the second representation is concerned there was a delay of 8 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence there was an inordinate delay of 5 days in submitting the remarks. Insofar as the third representation is concerned there was a delay of 11 days in submitting the remarks by the Detaining Authority, of which 5 days were Government Holidays and hence there was an inordinate delay of 6 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 4 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 5 days in submitting the remarks by the Detaining Authority. Insofar as the third representation is concerned, there is an inordinate and unexplained delay of 6 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 BCDFGISSSV No.291 of 2017 dated 22.05.2017, passed by the second respondent is set aside. The detenu, namely, Prakash, Son of Sivanandam, male, aged about 23 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.

Sd/- Asst.Registrar (CS II ) /true copy/ Sub Asst. Registrar vsm/ggs To 1.The Secretary to the Government, Home, Prohibition and Excise Department Secretariat, Chennai - 600 009.

2.The Commissioner of Police, Chennai Police, Office of the Commissioner of Police, (Goondas Section) Vepery, Chennai - 600 007.

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

4.The Public Prosecutor, Madras High Court, Chennai.

5.The Joint Secretary to Government, Public(Law & Order) Department, Secretariat, Fort St.George, Chennai-9 H.C.P.No.1318 of 2017 RK(CO) NR 09/10/2017