Santha v. The Secretary To The Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.06.2019
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH AND THE HON'BLE MR. JUSTICE M. NIRMAL KUMAR H.C.P.No. 531 of 2019 Santha ... Petitioner -vs1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.District Collector and District Magistrate, Vellore District, Vellore.
... Respondents Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 07.02.2019 in C3/D.O.No.13/2019 against the petitioner's son Venkatesan @ Balaji @ Sengadu Vengatesan, Male, aged 38 years, S/o. Subramaniam Pillai, who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty.
For Petitioner : Mr.S.Senthil Vel For Respondents : Mr.C.Iyyappa Raj Addl.Public Prosecutor
ORDER
[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the mother of Venkatesan @ Balaji @ Sengadu Vengatesan, S/o. Subramaniam Pillai, aged about 38 years, who is the detenu. The detenu has been detained by the second respondent by his order in C3/D.O.No.13/2019 dated 07.02.2019 holding him to be a "Sexual Offender", as contemplated under Section 2(ggg) 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 appearing 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 on time and there was an inordinate and unexplained delay.
4.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 07.02.2019. The petitioner made a representation on 13.02.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 15.02.2019. The remarks were duly received on 28.03.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 02.05.2019.
6. It is the contention of the petitioner that there was a delay of 41 days in submitting the remarks by the Detaining Authority, of which 12 days were Government Holidays and hence there was an inordinate delay of 29 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 28.03.2019 and there was delay of 33 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 13 days were Government Holidays, hence, there was inordinate delay of 20 days in considering the representation.
7. In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the Hon'ble 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 (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 Hon'ble 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 inordinate and unexplained delay of 29 days in submitting the remarks by the Detaining Authority and 20 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department. 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 C3/D.O.No.13/2019 dated 07.02.2019 , passed by the second respondent is set aside. The detenu, Venkatesan @ Balaji @ Sengadu Vengatesan,S/o. Subramaniam Pillai, aged about 38 years, is directed to be released forthwith unless his detention is required in connection with any other case.
Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar mmi/ssm To 1.The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Chennai - 600 009.
2.District Collector and District Magistrate, Vellore District, Vellore.
3.The Superintendent, Central Prison,Vellore.
4.The Public Prosecutor, High Court, Madras.
5.The Joint Secretary to Government, Public (Law and order).
Fort St.George, Chennai - 9.
H.C.P. No. 531 of 2019 EV(CO) RRS(24/07/2019)