Nandhini v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.06.2019

CORAM

THE HON'BLE MR. JUSTICE M.M.SUNDRESH AND THE HON'BLE MR. JUSTICE M.NIRMAL KUMAR H.C.P.No.192 of 2019 Nandhini

...Petitioner

Vs

1. State of Tamil Nadu, rep. by its Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007.

...Respondents

Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus, calling for the entire records, relating to petitioner husband's detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 12.01.2019 on the file of the second respondent herein made in proceedings No.10/BCDFGISSSV/2019 and quash the same as illegal and consequently direct the respondents herein to produce the said petitioner husband namely Venkatesan @ Poonga Venkatesan @ Kathiresan, son of Krishnasamy, aged 43 years before this Court and set the petitioner husband at liberty from detention, now petitioner husband detained at Central prison, Puzhal, Chennai600 066. For Petitioner :

Mr.S.Vinod Sathiya Lazar For Respondents:

Mr.C.Iyyappa Raj, Addl. Public Prosecutor

ORDER

(Order of the Court was delivered by M.M.SUNDRESH, J.) The petitioner is the wife of Venkatesan @ Poonga Venkatesan @ Kathiresan, aged about 43 years, who is the detenu. The detenu has been detained by the second respondent by his order in proceedings No.10/BCDFGISSSV/2019 dated 12.01.2019 holding her to be a "Immoral Traffic Offender", as contemplated under

Section 2(g) 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 appearing 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 on time and there was an inordinate and unexplained delay.

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 12.01.2019. The petitioner made a representation on 15.02.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on 20.02.2018. The remarks were duly received on 27.02.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 25.04.2019.

6. It is the contention of the petitioner that the remarks were received on 27.02.2019 and there was delay of 58 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 18 days were Government Holidays, hence, there was inordinate delay of 40 days in considering the representation.

7. In Rekha vs. State of Tamil Nadu (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 (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 40 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department. 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 proceedings No.10/BCDFGISSSV/2019 dated 12.01.2019, passed by the second respondent is set aside. The detenu, namely, Venkatesan @ Poonga Venkatesan @ Kathiresan, aged about 43 years, is directed to be released forthwith unless his detention is required in connection with any other case. rst Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar To

1. The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007.

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

4. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai -600 009.

5. The Public Prosecutor, High Court, Madras.

H.C.P.No.192 of 2019 Kak(05/08/2019)