Gopi, Male/Aged 54 Years v. State Of Tamil Nadu Rep.By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 12.10.2017 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.1335 of 2017 Gopi ... Petitioner Vs.

1.The Secretary to the Government, Home, Prohibition and Excise Department Secretariat, Chennai - 600 009.

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

...Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the entire records, relating to Petitioner's son detention under Tamil Nadu 14 of 1982 vide detention order, dated 25.05.2017 on the file of the second respondent herein made in proceedings No.303/BCDFGISSSV/2017 and quash the same as illegal and consequently direct the respondents herein to produce the said Petitioner's son namely Venkatesh, son of Gopi, detained at Central Prison-II, Puzhal, Chennai - 600 066 before this Court and set the Petitioner's son at liberty from detention. For Petitioner :

Mr.C.C. Chellappan 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 father of the detenu, namely, Venkatesh, S/o.Gopi. The detenu has been detained by the 2nd respondent by his order in No.303/BCDFGISSSV/2017, dated 25.05.2017, 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 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 25.05.2017. The petitioner made a representation, dated 14.06.2017 and the same was received on 15.06.2017 and thereafter, made an another representation dated 21.06.2017 and the same was received on 22.06.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 15.06.2017 in respect of the first representation. Insofar as the second representation is concerned, remarks were called for on 23.06.2017. The remarks were duly received on 20.06.2017 in respect of the first representation. Insofar as the second representation is concerned, remarks were duly received on 30.06.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 22.06.2017 in respect of the first representation. Insofar as the second representation is concerned, rejecting the petitioner's representation on 03.07.2017.

6. It is the contention of the petitioner that in respect of the first representation there was a delay of 05 days in submitting the remarks by the Detaining Authority, of which 02 days were Government Holidays and hence there was an inordinate delay of 03 days in submitting the remarks. Insofar as the second representation is concerned there was a delay of 07 days in submitting the remarks by the Detaining Authority, of which 03 days were Government Holidays and hence there was an inordinate delay of 04 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 03 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 04 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 303/BCDFGISSSV/2017 dated 25.05.2017, passed by the 2nd respondent is set aside. The detenu, namely, Venkatesh, Son of Gopi, 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 VIII) True Copy Sub-Assistant Registrar rkp To:

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

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

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

4. The Joint Secretary to government of Tamil Nadu Public(Law and order) Fort. st. George Chennai 9.

5. The Public Prosecutor, Madras High Court, Madras H.C.P. No.1335 of 2017 KS(CO) SP(12/10/2017)