Thenmozhi, F/A.48 Years v. The State Of Tamil Nadu Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 03.01.2018 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDHER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2210 of 2017 Thenmozhi ... Petitioner Vs.

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

2.The Commissioner of Police, Chennai Police, Vepery, Chennai - 7.

...Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records leading to the detention of the petitioner's son Balaji, son of Balu male aged 26 years has been detained under Act 14/82 as a Goonda vide detention order dated 25.10.2017 on the file of the 2nd respondent herein, made in BCDFGISSSV No.654/2017 and quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Puzhal, Chennai.

For Petitioner : Mr.M.Rajavelu For Respondents : Mr.V.M.R.Rajentran, Addl. Public Prosecutor.

O R D E R

(Order of the Court was made by N.SATHISH KUMAR, J) The petitioner is the mother of the detenu, namely, Balaji, S/o.Balu, male, aged about 26 years. The detenu has been detained by the second respondent by his order in BCDFGISSSV No.654/2017 dated 25.10.2017, 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.

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 record 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 with regard to the same.

4. Though notice in this petition was issued on 22.11.2017, 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 25.10.2017. The petitioner made a representation dated 15.11.2017 and the same was received on 23.11.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 23.11.2017. 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.

6. It is the contention of the petitioner that there was a delay of 4 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was a delay of 2 days in submitting the remarks. Thereafter, there was another delay of 21 days in considering the representation, of which 6 days were Government Holidays and hence there was an inordinate delay of 15 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 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 a delay of 2 days in submitting the remarks by the Detaining Authority and 15 days 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.654/2017 dated 25.10.2017, passed by the second respondent is set aside. The detenu, namely, Balaji, S/o.Balu, male, aged about 26 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/- Assistant Registrar(cs v) //True Copy// Sub Assistant Registrar To 1.The Secretary to Government, Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.

2.The Commissioner of Police, Chennai Police, Vepery, Chennai - 7.

3.The Joint Secretary Public (Law and order) Department, Secretariat, Chennai - 600 009.

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

[in duplicate for communication to the detenu] 5.The Public Prosecutor, Madras High Court, Chennai.

EV(co) SM:4.1.2018 H.C.P.No.2210 of 2017