E.Devi (F/36) v. State Of Tamilnadu Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 21.06.2018

CORAM

THE HONOURABLE DR. JUSTICE S.VIMALA AND THE HONOURABLE MRS. JUSTICE S.RAMATHILAGAM Habeas Corpus Petition No.245 of 2018 E.Devi .. Petitioner / Mother of the detenue - Vs -

1. State of Tamil Nadu, Rep. by its Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9

2. The District Magistrate and District Collector, Vellore District, Vellore - 9 .. Respondents Petition filed for the issuance of a writ of habeas corpus calling for the records relating to the impugned order in C3/D.O.No.07/2018, dated 17.01.2018, on the file of the 2nd respondent herein and quash the same and direct the respondents to produce the body of the detenue, Umapathy, Male, aged 21, S/o.Elumalai, now detained at Central Prison, Vellore, before this Hon'ble Court and set him at liberty.

For Petitioner : Mr. S.Senthilvel for M/s.S.Doraisamy For Respondents: Mr. R.Prathap Kumar, Additional Public Prosecutor

O R D E R

(Order of the Court was made by S.Vimala, J.,) The second respondent, the District Magsitrate and District Collector, Vellore, clamped an order of detention on 17.01.2018 as against the detenue, Umapathy, Male, aged 21, S/o.Elumalai, as the said authority arrived at the subjective satisfaction that the said detenue is a 'Goonda' and he has to be detained under the provisions of the 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 mother of the detenue has come forward with the present habeas corpus petition.

3. Heard Mr.S.Senthilvel, learned counsel appearing for the petitioner and Mr.R.Prathap Kumar, learned Additional 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. Learned Additional Public Prosecutor appearing for the respondents conceded that there is only a delay of twenty days and it 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.

5. In the case of 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]."

6. 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.

7. Hence, the order of detention is quashed. The habeas corpus petition is allowed. The detenue, Umapathy, Male, aged 21, S/o.Elumalai, is ordered to be set at liberty forthwith, unless his custody is otherwise required in any other case. Sd/-- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar

srk To

1. State of Tamil Nadu, Rep. by its Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9

2. The District Magistrate and District Collector, Vellore District, Vellore - 9

3. The Superintendent of Prisons, Central Prison, Vellore - 9 4.The Joint Secretary Public (Law & Order) Department, Fort St. George, Chennai-9 5.The Public Prosecutor High Court, Madras.

+1cc to M/s.S.Doraisamy, Advocate sR.No.38977 AK(CO) sm:13.7.2018 H.C.P.No.245 of 2018