Karthick @ Bala @ Balakrishnan v. State Of Tamil Nadu Rep.By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.1970 of 2017 Karthick @Bala @ Balakrishnan ... Petitioner -Vs1.The State of Tamil Nadu, Rep. by its Secretary to Government, Department of Prohibition and Excise (Home), Fort St. George, Chennai-600 009.

2. The Commissioner of Police, Chennai City Police, Greater Chennai, Commissioner Office, Vepery, Chennai 600 007.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus to call for the entire records, relating to Petitioner's detention under Tamil Nadu Act 14 of 1982 vide detention order dated 05.09.2017 on the file of the second respondent herein made in proceedings BCDFGISSSV No.542/2017 and quash the same as illegal and consequently direct the respondents herein to produce the said Petitioner namely Karthick @ Bala @ Balakrishnan, son of Appadurai, aged 25 years before this Court and set the petitioner at liberty from detention, now petitioner detained at Central Prison-II, Puzhal, Chennai-600 066.

For Petitioner :

Mr.Ilayaraja Kandasamy For Respondents:

Mr.V.M.R.Rajentran Additional Public Prosecutor

O R D E R

[Order of the Court was made by N.SATHISH KUMAR, J.] The petitioner is the detenu, namely, Thiru.Karthick @ Bala @ Balakrishnan, S/o.Appadurai, Male, aged about 25 years. The detenu has been detained by the 2nd respondent by his order in

BCDFGISSSV No.542/2017 dated 05.09.2017 holding him to be a "Goonda", as contemplated under Section 2(f) 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 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 in time and there was an unexplained delay with regard to the same.

4.Notice in this petition was issued on 26.10.2017, despite which, no counter affidavit has been filed by the State. However, 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 05.09.2017. The petitioner made a representation, dated 07.10.2017 the same was received on 12.10.2017. Thereafter, remarks were called for by the Government from the Detaining Authority i.e., on 16.10.2017. The remarks were duly received on 25.10.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 30.10.2017. 6.It is the contention of the petitioner that there was an unexplained delay of 9 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence there was an unexplained delay of 6 days in submitting the remarks. Thereafter, there was another delay of 2 days in considering the representation.

7.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.

8.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.

9.In Tara Chand vs. State of Anbazhagansthan 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 unexplained delay of 9 days in submitting the remarks by the Detaining Authority and 2days in considering the representation. The impugned detention order is, therefore, liable to be quashed. 11.In the result, the Habeas Corpus Petition is allowed and the order of detention in BCDFGISSSV No.542/2017 dated 05.09.2017 passed by the 2nd respondent is set aside. The detenu, namely, Thiru.Karthick @ Bala @ Balakrishnan, S/o.Appadurai, Male, aged about 25 years, is directed to be released forthwith unless his detention is required in connection with any other case. Given the nature of the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.

Sd/- Asst.Registrar (CS II ) /true copy/ Sub Asst. Registrar To 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Department of Prohibition and Excise (Home), Fort St. George, Chennai-600 009.

2. The Commissioner of Police, Chennai City Police, Greater Chennai, Commissioner Office, Vepery, Chennai 600 007.

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

4.The Superintendent, Central Prison,Puzhal, Chennai.

(In duplicate for Communication to detenue) 5.The Public Prosecutor, Madras High Court, Madras.

H.C.P.No.1970 of 2017 NR 18/12/2017