Muniyan, Aged 52 Years, v. State Rep. By,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 16.07.2018

CORAM

THE HONOURABLE DR. JUSTICE S.VIMALA AND THE HONOURABLE MRS. JUSTICE S.RAMATHILAGAM H.C.P. NO. 224 OF 2018 Muniyan .. Petitioner - Vs -

1. State of Tamil Nadu rep. By Secretary to Govt.

Prohibition & Excise Dept.

Fort St. George, Chennai - 9.

2. The Commissioner of Police Poonamallee High Road Vepery, Chennai 600 007.

.. Respondents Petition filed for the issuance of a writ of habeas corpus calling for the records on the file of the 2nd respondent passed in detention Memo No.08/BCDFGISSSV/2018 dated 09.11.2017 relating to the detention of Venkatesan @ Sweting Venkatesan, S/o Muniyan, aged 27 years, lodged in Central Prison, Puzhal, Chennai, and direct the respondents to produce the body of the detenu, before this Hon'ble Court and set him at liberty. For Petitioner : Mr. C.Mohan Raj For Respondents : Mr. R.Prathap Kumar, APP

ORDER

(DELIVERED BY DR. S.VIMALA, J.) The present habeas corpus petition has been preferred by the petitioner challenging the detention order dated 08.01.2018 passed by the 2nd respondent in and by which the 2nd respondent detained the detenu, Venkatesan @ Sweting Venkatesan, S/o Muniyan, as a 'Goonda' under Section 3 (1) of Tamil Nadu Act 14 of 1982 with a view to preventing him from acting prejudicial to the interest of public health and public order.

2. Challenging the order of detention, the petitioner has come forward with the present habeas corpus petition.

3. Heard Mr.Mohan Raj, learned counsel appearing for the petitioner and Mr.R.Prathap Kumar, learned Addl. Public Prosecutor appearing for the respondents.

4. It is contended that there is a delay in considering the representation and this has rendered the detention illegal. It is the further submission of the learned counsel for the petitioner that the intimation relating to the arrest of the detenu has not been communicated to the relatives of the detenu, which also vitiates the order of detention.

5. Learned Addl. Public Prosecutor appearing for the respondents submitted that though there is a delay of 13 days in considering the representation, but the said delay in no way vitiates the order of detention. Though such a contention is advanced, however, no explanation has been adduced by the respondents explaining the delay.

6. In Rashid Kapadia v. Medha Gadgil, (2012 (11) SCC 745), the Supreme Court had occasion to consider the effect of delay in considering the representation and in that context held as under :- "13.It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the authority concerned as expeditiously as possible, is a constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the authorities on this aspect, except to take note of a couple of judgments where the principle is discussed in detail. They are: Mohinuddin v. District Magistrate, Beed [(1987) 4 SCC 58 : 1987 SCC (Cri) 674] and Harshala Santosh Patil v. State of Maharashtra [(2006) 12 SCC 211 : (2007) 1 SCC (Cri) 680]."

7. In view of the above proposition, the delay in considering the representation submitted by the petitioner, which has not been explained properly has vitiated the order of detention. The delay is fatal to the order of detention and this has rendered the detention illegal.

8. On this short ground, the order of detention is quashed. The habeas corpus petition is allowed. The detenu, Kattaian @

Subramani, S/o Dhasan @ Karuppusami, is ordered to be set at liberty forthwith, unless his custody is otherwise required in any other case.

Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar To

1. The Secretary to Govt.

Home, Prohibition & Excise Dept.

Secretariat, Fort St. George Chennai - 9.

2. The Commissioner of Police Poonamallee High Road Vepery, Chennai 600 007.

3.The Superintendents, Central Prison, Puzhal, Chennai 4.The Joint Secretary to Government, Public (Law of order) Department, Fort Street George, Chennai-9 5.The Public prosecutor, High Court, Madras.

H.C.P. NO. 224 OF 2018 NMI(CO) GSP(01/08/2018)