Archana v. Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.11.2022 Coram The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mr. Justice RMT.TEEKAA RAMAN Archana .. Petitioner Vs 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.

2.State represented by The Commissioner of Police, Coimbatore - 18.

3.The Superintendent of Prison, Central Prison, Coimbatore District.

4.The Inspector of Police, All Women Police Station-West, Coimbatore District.

.. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus directing the respondents to produce the records in connection with the detention order passed by the second respondents vide C.No.62/G/IS/2021 dated 13.12.2021 and quash the

same and produce the petitioner's husband K.Mithun Chakaravarthy, S/o.Kalimuthu, aged about 30 years, now detained in the Central Prison, Coimbatore, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug offenders, Forest offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982, read with order issued by the Government of Tamil Nadu in G.O.(D)No.250, Home Prohibition and Excise Department dated 11.10.2021 under Section 3(2) of the aforesaid Act, before this Court and set him at liberty. For Petitioner : Ms.G.R.Deepa For Respondents : Mr.R.Muniyapparaj Addl. Public Prosecutor

ORDER

(Made by P.N.PRAKASH, J.) The petitioner is the wife of the detenu K.Mithun Chakaravarthy, S/o.Kalimuthu, aged about 30 years. The detenu has been detained by the second respondent by his order in C.No.62/G/IS/2021 dated 13.12.2021, holding him to be a "Sexual Offender", as contemplated under Section 2(ggg) 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 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 on behalf of the detenu was not considered in time and there was an inordinate and unexplained delay.

4. The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. 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 13.12.2021. A representation was made on behalf of the detenu on 29.12.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 04.01.2022. The remarks were duly received on 19.01.2022. Thereafter, the Government considered the matter and passed the order rejecting the representation on 16.06.2022.

6. It is the contention of the petitioner that there was a delay of 15 days in submitting the remarks by the Detaining Authority, of which, 6 days were Government Holidays and hence there was an inordinate delay of 9 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 19.01.2022 and there was a delay of 148 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 46 days were Government Holidays, hence, there was an inordinate delay of 102 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 9 days in submitting the remarks by the Detaining Authority and unexplained delay of 102 days in considering

the representation by the Hon'ble Minister for Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed.

In the result, the Habeas Corpus Petition is allowed and the order of detention in C.No.62/G/IS/2021 dated 13.12.2021, passed by the second respondent is set aside. The detenu, viz. K.Mithun Chakaravarthy, S/o.Kalimuthu, aged about 30 years, is directed to be released forthwith unless his detention is required in connection with any other case.

(P.N.P., J.) (TKRJ) 11.11.2022 Index: Yes/No nsd

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

2.State represented by The Commissioner of Police, Coimbatore - 18.

3.The Superintendent of Prison, Central Prison, Coimbatore District.

4.The Inspector of Police, All Women Police Station-West, Coimbatore District.

5.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

6.The Public Prosecutor, High Court, Madras.

P.N.PRAKASH, J.

and RMT.TEEKAA RAMAN, J.

nsd 11.11.2022