Gomathi, F/A.48 Years v. The Secretary To Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.07.2018
CORAM
THE HONOURABLE DR.JUSTICE S.VIMALA AND THE HONOURABLE MRS.JUSTICE R.HEMALATHA Habeas Corpus Petition No.425 of 2018 Gomathi .. Petitioner /Mother of the detenu
Versus
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police / Detaining Authority, City Police Office, Huzur Road, Coimbatore City, Coimbatore-18. .. Respondents Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Habeas Corpus, to call for the entire records relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order dated 21.02.2018 on the file of the second respondent herein made in proceedings Memo C.No.27/G/IS/2018, to quash the same as illegal and consequently to direct the respondent herein to produce the petitioner's son namely, M.Sundar Rajan S/o.Mohan, aged 22 years before this Court and to set the petitioner's at liberty from detention now petitioner's son detained at central Prison, Coimbatore.
For Petitioner : M/s.W.Camyles Gandhi 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 herein clamped an order of detention on 21.02.2018 as against the detenu, M.Sundar Rajan S/o.Mohan, aged 22 years, as the said authority arrived at the subjective satisfaction that the said detenu 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 detenu has come forward with the present Habeas Corpus Petition.
3. Heard M/s.W.Camyles Gandhi, 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 of 10 days in considering the representation and this has rendered the detention illegal.
4.1. The learned Additional Public Prosecutor appearing for the respondents submitted that there is a delay of 10 days only, in considering the representation and it in no way vitiates the order of detention.
4.2. Though such a contention is advanced, however, no explanation has been adduced by the respondents explaining the reasons for 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. On this short ground, the order of detention is quashed.
The habeas corpus petition is allowed. The detenu, M.Sundar Rajan S/o.Mohan, aged 22 years, is ordered to be set at liberty forthwith, unless his custody is otherwise required in any other case.
-s/d- Assistant Registrar(CCC) True Copy Sub-Assistant Registrar ia/srk To:
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police / Detaining Authority, City Police Office, Huzur Road, Coimbatore City, Coimbatore-18.
3.The Superintendent of Prison, Central Prison, Coimbatore.
4. The Joint Secretary to Government Public (Law and order) Fort. St. George Chennai 9.
5.The Public Prosecutor, Madras High Court, Chennai - 104.
H.C.P.No.425 of 2018 SP(13/08/2018)