S.Balu v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.07.2022 Coram:

The Honourable Mr. Justice S.VAIDYANATHAN and The Honourable Mr. Justice A.D.JAGADISH CHANDIRA H.C.P.No.430 of 2022 S.Balu .. Petitioner Vs.

1. The State of Tamil Nadu, Rep. by its Secretary, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

2. The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police, (Goondas Section), Vepery, Chennai - 600 007.

3. The Superintendent, Central Prison, Puzhal, Chennai - 600 066.

4. The Inspector of Police, Cyber Crime Police, Team - C, Central Crime Branch, Chennai.

.. Respondents

Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records pertaining to the detention order in D.O. No.356/BCDFISSSV/2021, dated 28.11.2021 against my son Thiru.B.Lokesh (Male) (Age-26) S/o. Balu, passed by the second respondent under the Tamilnadu Act 14 of 1982 and set aside the same and direct the respondent to produce my son Thiru. B.Lokesh (male) (Age-26) S/o.Balu now confined in Central Prison, Puzal, Chennai, before this Court and set my son Thiru. B.Lokesh (male) (Age-26) S/o.Balu, the detenue herein at liberty. For Petitioner : Mr. Ilayaraja Kandasamy For Respondents : Mr. M.Babu Muthumeeran Additional Public Prosecutor

ORDER

(Hearing was made through Hybrid mode) S.VAIDYANATHAN, J., and A.D.JAGADISH CHANDIRA, J., The petitioner is the mother of detenu B.Lokesh, aged 26, S/o.Balu. The detenue has been detained by the second respondent by his order in D.O. No.356/BCDFISSSV/2021, dated 28.11.2021, holding him to be a "Cyber Law Offender", as contemplated under Section 2(bb) 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 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.

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 28.11.2021. The petitioner made a representation on 23.02.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 23.02.2022. The remarks were duly received on 03.03.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 18.04.2022.

6. It is the contention of the petitioner that there was a delay of 9 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays, hence there was a delay of 7 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 03.03.2022 and there was an inordinate delay of 46 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise (XIII) Department after the Deputy Secretary dealt with it, of which 17 days were Government Holidays, hence, there was inordinate delay

of 29 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 7 days in submitting the remarks by the Detaining Authority and unexplained delay of 29 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise (XIII) 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 D.O. No.356/BCDFISSSV/2021, dated 28.11.2021, passed by the second respondent is set aside. The detenu, viz., B.Lokesh, aged 26, S/o.Balu, is directed to be released forthwith unless his detention is required in connection with any other case.

(S.V.N.,J.) (A.D.J.C.,J.) 07.07.2022 Index: Yes/No bkn Note: i)Issue order copy forthwith.

ii)The Uploaded order can be utilized for the purpose of the execution of the order.

To

1. The State of Tamil Nadu, Rep. by its Secretary, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

2. The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police, (Goondas Section), Vepery, Chennai - 600 007.

3. The Superintendent, Central Prison, Puzhal, Chennai - 600 066.

4. The Inspector of Police, Cyber Crime Police, Team - C, Central Crime Branch, Chennai.

5.The Public Prosecutor, High Court, Madras.

S.VAIDYANATHAN, J., and A.D.JAGADISH CHANDIRA, J., bkn H.C.P.No.430 of 2022 07.07.2022