Thiru.Stephanraj v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.01.2018 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDHER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2379 of 2017 Thiru.Stephanraj ... Petitioner Vs.
1.The Secretary to Government, Government of Tamil Nadu, Home, Prohibition and Excise Department Secretariat, Chennai - 600 009.
2.The District Collector & District Magistrate O/o. The District Collector and District Magistrate Krishnagiri, Krishnagiri District.
...Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records of the detention order made in S.C.No.16/2017 dated 20.03.2017 passed by the District Collector and District Magistrate, Krishnagiri, Krishnagiri District, the second respondent herein against the petitioner/detenu, Thiru.Stephenraj aged about 25 years, who is now confined at Central Prison, Salem and set aside the same and produce him before this Court and set him at liberty.
For Petitioner : Mr.M.Sankar 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 detenu, namely, Stephenraj, S/o.David, male, aged about 25 years. The detenu has been detained by the second respondent by his order in S.C.No.16/2017 dated 20.03.2017, 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 13.12.2017, 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 20.03.2017. The petitioner made a representation and the same was received on 24.04.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 25.04.2017. The remarks were duly received on 16.05.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 14.06.2017.
6. It is the contention of the petitioner that there was a delay of 21 days in submitting the remarks by the Detaining Authority, of which 7 days were Government Holidays and hence there was an inordinate delay of 14 days in submitting the remarks. Thereafter, there was another delay of 29 days in considering the representations, of which 8 days were Government Holidays and hence there was an inordinate delay of 21 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 an inordinate and unexplained delay of 18 days in submitting the remarks by the Detaining Authority and 21 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 S.C.No.16/2017 dated 20.03.2017, passed by the second respondent is set aside. The detenu, namely, Stephanraj, S/o.David, male, aged about 25 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-IX) //True Copy// Sub Assistant Registrar vsm To 1.The Secretary to the Government, Home Prohibition and Excise Department Secretariat, Chennai - 600 009.
2.The District Collector & District Magistrate Krishnagiri, Krishnagiri District.
3.The Joint Secretary Public (Law and order) Department, Secretariat, Chennai - 600 009.
4.The Superintendent, Central Prison, Salem.
[in duplicate for communication to the detenu] 5.The Public Prosecutor, Madras High Court, Chennai.
H.C.P.No.2379 of 2017 GMR(CO) TR(02/01/2018)