Devaraj, M/A 50 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.429 of 2018 Deva Raj .. Petitioner / Father of the detenu
Versus
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Krishnagiri District, Kirshnagiri.
.. Respondents Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the second respondent dated 12.02.2018 in S.C.NO.6 of 2018 against the petitioner son Murali, male aged 19 years, S/o.Devaraj, who is confined at presently detained in the Central Prison, Brostal School, Pudukottai and set aside the same and to direct the respondents to produce the detenu before this court and to set him at liberty.
For Petitioner : Mr.S.Senthil Vel 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 12.02.2018 as against the detenu, Murali, S/o.Devaraj, aged 19 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 father of the detenu has come forward with the present Habeas Corpus Petition.
3. Heard Mr.S.Senthil Vel, 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 46 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 46 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, Murali, S/o.Devaraj, aged 19 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, Chennai - 600 009.
2.The District Collector and District Magistrate, Krishnagiri District, Kirshnagiri.
3.The Superintendent of Prison, Brostal School, Pudukottai.
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.429 of 2018 SP(13/08/2018)