A.Thaslim Fathima, 26 Yrs, v. The Secretary To Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.08.2018

CORAM:

THE HONOURABLE Mr. JUSTICE C.T.SELVAM AND THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR H.C.P.No.621 of 2018 A.Thaslim Fathima ... Petitioner/Sister of the detenue -Vs1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009. 2.The Commissioner of Police / Detaining Authority, City Police Office, Huzur Road, Coimbatore City, Coimbatore - 18.

... 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, relating to the petitioner's brother detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 19.3.2018 on the file of the second respondent herein made in proceedings Memo C.No.33/G/IS/2017, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's brother namely A.Ameer Abbas S/o.Amanullah, aged 26 years before this Court and set the petitioner's brother at liberty from detention, now the petitioner's brother detained at Central Prison, Coimbatore.

For Petitioner :

Mr.W.Camyles Gandhi 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 sister of the detenu herein, viz., A.Ameer Abbas son of Amanullah, aged 26 years. The detenu has been detained by the second respondent by his order in C.No.33/G/IS/2018, dated 19.03.2018, 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.

Cr.No. & Police Station Offences 1.

Cr.No.413 of 2017 D-4 Kuniamuthur Police Station, Coimbatore City 392 IPC 2.

Cr.No.1041 of 2017 D-4 Kuniamuthur Police Station, Coimbatore City 379 IPC The ground case has been registered against the detenu in Cr.No.132 of 2018 on the file of D-1 Ramanathapuram Police Station for offences u/s 392 r/w 397 and 506(ii) IPC. The detention order has been passed by second respondent in C.No.33/G/IS/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 19.03.2018. The petitioner made a representation, dated 23.03.2018 and the same was received on 26.03.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day. The remarks were duly received on 06.04.2018. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 12.04.2018.

7. It is the contention of the petitioner that there was an inordinate delay of 11 days in submitting the remarks by the Detaining Authority, of which 4 days were Saturdays and Sundays and Government Holiday and hence there was an inordinate delay of 7 days in submitting remarks. Thereafter, there was yet another delay of 3 days, in considering the 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 7 days in submitting the remarks by the Detaining Authority and 3 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 C.No.33/G/IS/2018, dated 19.03.2018, passed by the second respondent is set aside. The detenu, namely, A.Ameer Abbas son of Amanullah, aged about 26 years, is directed to be released forthwith unless his detention is required in connection with any other case. -s/d- Assistant Registrar(CS-IX) True Copy Sub-Assistant Registrar kmi To:

1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009. 2.The Commissioner of Police / Detaining Authority, City Police Office, Huzur Road, Coimbatore City, Coimbatore - 18.

3.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.621 of 2018 PVS(CO) SP(03/09/2018)