Chinnadurai, v. The State Of Tamil Nadu Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.02.2018 Coram THE HON'BLE MR.JUSTICE C.T.SELVAM and THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2387 of 2017 Chinnadurai ... Petitioner Vs.
1.The State of Tamil Nadu Rep. by its Secretary to Government, Home, Prohibition and Excise Department Chennai 600 009.
2.The Commissioner of Police, Vepery, Chennai.
...Respondents
PRAYER:
Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the detenue's detention order passed by the second respondent in his Order No. No.662/BCDFGISSSV/2017 dated 27.10.2017 approved by the first respondent and set aside the same and produce the detenue Chinnadurai, Male, aged 50 years S/o.Maria Sebastian now detained in Central Prison, Chennai and set him at liberty.
For Petitioner : Mr.C.C.Chellappan 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, Chinnadurai, aged 50 years, S/o.Maria Sebastian. The detenu has been detained by the second respondent by his order in Memo No.662/BCDFGISSSV/2017 dated 27.10.2017 holding him to be a "Drug Offender", as contemplated under Section 2(e) 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 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 with regard to the same.
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 27.10.2017. The petitioner made a representation dated 29.11.2017 and the same was received on 05.12.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day i.e., on 04.12.2017. The remarks were duly received on 11.12.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation 18.12.2017.
6. It is the contention of the petitioner that there was an unexplained delay of 5 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was an unexplained delay of 3 days in submitting the remarks. Thereafter, another unexplained delay of 5 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 unexplained delay of 3 days in submitting the remarks by the Detaining Authority and 2 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 Memo No.662/BCDFGISSSV/2017 dated 27.10.2017, passed by the second respondent is set aside. The detenu, namely, Chinnadurai, S/o.Maria Sabastian, Male, aged 50 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 ggs To 1.The Secretary to Government, Home, Prohibition and Excise Depatment Fort St. George, Chennai 600 009.
2.The Commissioner of Police, The Commissioner Office, Vepery, Chennai.
3.The Joint Secretary to Government Public Law and Order Department Government of Tamil Nadu Fort St. George, Chennai-9.
4.The Superintendent, Central Prison, Puzhal, Chennai (In duplicate for communication to the detenu) 5.The Public Prosecutor, Madras High Court, Chennai.
H.C.P.No.2387 of 2017 SJ(CO) GN(27/02/2018)