Murali Govindarajan, v. Seretary Go Govt,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.01.2018

CORAM:

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2115 of 2017 Murali Govindarajan ... Petitioner -vs1.The State of Tamil Nadu rep by it's Secretary to Government, Home, Prohibition and Excise Department, Chennai-600 009.

2.The Commissioner of Police Greater Chennai, Chennai 600007.

... 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 th detenue's detention order passed by the 2nd respondent in his order No.635/2017 dated 14.10.2017 approved by the 1st respondent and set aside the same and produce the detenue Vijayaragavan, aged 23 years, S/o.Murali Govindarajan, now detained in Central Prison, Puzhal, Chennai, before this Court and set him at liberty.

For Petitioner :

Mr.N.Ramu For Respondents:

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

ORDER

[Order of the Court was made by C.T.SELVAM, J.] The petitioner is the father of the detenu herein, viz., Vijayaragavan, aged 23 years. The detenu has been detained by the second respondent by his order in BCDFGISSSV No.635/2017, dated 14.10.2017, holding him to be a "Goonda", as contemplated under 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

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.

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.

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.

The Detention Order in question was passed on 14.10.2017. The petitioner made a representation, dated 30.10.2017 and the same was received on 21.11.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on the next day, i.e., 22.11.2017. The remarks were duly received on 27.11.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 18.12.2017.

It is the contention of the petitioner that there was a delay of 5 days in submitting the remarks by the Detaining Authority, of which 2 days were Saturdays and Sundays and hence there was a delay of 3 days in submitting the remarks. Thereafter, there was yet another delay of 20 days in considering the representation, of which 6 days were Saturdays and Sundays, hence, there was another inordinate delay of 18 days in considering the representation.

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.

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.

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.

In the subject case, admittedly, there is an inordinate and unexplained delay of 3 days in submitting the remarks by the Detaining Authority and 18 days in considering the representation. 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 BCDFGISSSV No.635/2017, dated 14.10.2017, passed by the second respondent is set aside. The detenu, namely, Vijayaragavan, son of Murali Govindarajan, aged about 23 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Asst.Registrar (CS VII) /true copy/ Sub Asst. Registrar AP To 1.The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-600 009.

2.The Commissioner of Police Greater Chennai, Chennai 600007.

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

4. The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai.

3.The Public Prosecutor, High Court, Madras.

H.C.P.No.2115/2017 nr 12/02/2018