Kandan @ Kandasamy, v. The State Of Tamil Nadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.03.2018
CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.23 of 2018 Kandan @ Kandasamy ... Petitioner -Vs1.State of Tamil Nadu represented by its Principal Secretary, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009. 2.The Commissioner of Police, Tirupur City, Tirupur.
... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the order of detention C.NO.07/G/IS/2017 dated, 20/07/2017 passed by the 2nd respondent and to quash the same and also to direct the detenu Kandan @ Kandasamy M/A 48 Years, S/O.Shanmugham, who is presently detained in the Central Prison, Coimbatore District to be produced before this Hon`ble court and set at liberty.
For Petitioner :
Mr.S.Samuel Rajapandian For Respondents:
Mr.R.Prathap Kumar Additional Public Prosecutor ***
ORDER
[Order of the Court was made by C.T.SELVAM, J.] The petitioner is the detenu herein, viz., Kandan @ Kandasamy, son of Shanmugam Nadar, aged 48 years. The detenu has been detained by the second respondent by his order in C.No.07/G/IS/2017, dated 20.07.2017, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). The said order is under challenge in this Habeas Corpus Petition.
2. The detenu has come to adverse notice in the following cases:- S.No.
Cr.No. & Police Station Offences 1.
Cr.No.134/2017 Tiruppur City South Police Station 457, 380 IPC @ 457, 380, 414 IPC 2.
Cr.No.229/2017 Tiruppur City South Police Station 457, 380 IPC The ground case has been registered against the detenu in Cr.No.231 of 2017 on the file of Tiruppur City South Police Station for offences u/s 392 r/w 397, 506(ii) IPC. The detention order has been passed by second respondent in Memo C.No.07/G/IS/2017.
3. We have heard learned counsel for the petitioner and learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.
4. 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.
5. 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.
6. The Detention Order in question was passed on 20.07.2017. The petitioner made a representation, dated 22.08.2017 and the same was received on 24.08.2017. Thereafter,
remarks were called for by the Government from the Detaining Authority on the same day. The remarks were duly received on 01.09.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 18.09.2017.
7. It is the contention of the petitioner that there was a delay of 7 days in submitting the remarks by the Detaining Authority, of which 3 days were Saturdays and Sundays and hence there was an inordinate delay of 4 days in submitting the remarks. Thereafter, there was yet another delay of 17 days in considering the representation, of which 6 days were Saturdays and Sundays and hence there was an inordinate delay of 11 days in considering the representation.
8. 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.
9. 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.
10. 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.
11. In the subject case, admittedly, there is an inordinate and unexplained delay of 4 days in submitting the remarks by the Detaining Authority and 11 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.
12. In the result, the Habeas Corpus Petition is allowed and the order of detention in C.No.07/G/IS/2017, dated 20.07.2017, passed by the second respondent is set aside. The detenu, namely, Kandan @ Kandasamy, Son of Shanmugam Nadar, aged about 48 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar kmi
To 1.The Secretary, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009. 2.The Commissioner of Police, Tiruppur City, Tiruppur.
3.The Joint Secretary Public (Law and order) Department, Secretariat, Chennai - 600 009.
4.The Superintendent, Central Prison, Coimbatore.
5.The Public Prosecutor, High Court, Madras.
H.C.P.No.23 of 2018 nm(co) aa17/04/2018