A.Gowri, Aged 31 Years, v. The State Of Tamil Nadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2018
CORAM:
THE HONOURABLE Mr.JUSTICE C.T.SELVAM AND THE HONOURABLE Mrs.JUSTICE S.RAMATHILAGAM H.C.P.No.1737 of 2018 A.Gowri ... Petitioner -VsThe State of Tamil Nadu, Rep. by its Secretary to Government, Home Prohibition and Excise (XVI) Department, Fort St. George, Secretariat, Chennai - 600 009.
The District Collector and District Magistrate, Erode District, Erode The Superintendent of Prison, Central Prison, Coimbatore.
... Respondents PRAYER:
Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the entire records from the 2nd respondent in connection with order in Crl.M.P.No.13/Goonda/2018/C1 dated 25.07.2018 and quash the same and produce the petitioner's husband namely Anand @ Anandakumar S/o. Dhanushkodi aged 33 years now confined in Central Prison, Coimbatore under the Tamil Nadu Act 14 of 1982 before this Hon'ble Court and set him at liberty.
For Petitioner :
Mr.P.Pugalenthi For Respondents :
Mr.R.Prathap Kumar Additional Public Prosecutor
ORDER
[Order of the Court was made by C.T.SELVAM, J.] The petitioner is the wife of the detenu herein, viz. Anand alias Anandakumar, Son of (Late) Dhanushkodi, aged 33 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No.13/Goonda/2018/C1 dated 25.07.2018, holding
him to be a "GOONDA", as contemplated under Section 2(f) of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). The said order is under challenge in this Habeas Corpus Petition.
2. The detenu has come to adverse notice in the following cases:- S.No.
Police Station & Crime No.
Section of Law Erode Town Police Station Crime No.864/2016 Section 5 read with 7
(3) of Tamil Nadu Lottery Regulation Act.
Coimbatore Unit Narcotic Inteligence Bureau Crime No.168/2017 Section 8(c) readwith 20(b) (ii) (B) of Narcotic Drugs and Psychotropic Substances Act.
Erode Town Police Station Crime No.359/2018 387 IPC The ground case has been registered against the detenu in Cr.No.589/2018 on the file of the Erode Town Police Station for offences u/s 294(b), 387 & 506(ii) IPC. The detention order has been passed by second respondent in Cr.M.P.No.13/Goonda/2018/C1 on 25.07.2018.
3. We have heard learned counsel for the petitioner and learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.
4. 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.
5. 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.
6. The Detention Order in question was passed on 25.07.2018. The petitioner made a representation, dated 13.08.2018 and the same was received on 28.08.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day. The remarks were duly received on 07.09.2018. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 03.10.2018.
7. It is the contention of the petitioner that there was an inordinate delay of 10 days in submitting the remarks by the Detaining Authority, of which 2 days were Saturdays and Sundays and hence there was a delay of 8 days in submitting the remarks. Thereafter, there was yet another delay of 26 days in considering the representation, of which 8 days were Saturday, Sunday and 3 days were Government Holidays hence there was a delay of 15 days in considering representation.
8. 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.
9. 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.
10. 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.
11. In the subject case, admittedly, there is an inordinate and unexplained delay of 8 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.
12. In the result, the Habeas Corpus Petition is allowed and the order of detention in Cr.M.P.No.13/Goonda/2018/C1, dated 25.07.2018, passed by the second respondent is set aside. The
detenu, namely Anand alias Anandakumar, Son of Dhanushkodi, aged 33 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar kkn To:
The Secretary to Government, The State of Tamil Nadu, Home Prohibition and Excise (XVI) Department, Fort St. George, Secretariat, Chennai - 600 009.
The District Collector and District Magistrate, Erode District, Erode.
The Superintendent, Central Prison, Coimbatore.
4.
The Joint Secretary, Public (Law and order) Department, Secretariat, Chennai - 600 009.
5.
The Public Prosecutor, High Court, Madras.
H.C.P.No.1737 of 2018 KK(Co) CS/26/12/2018