Bujiyammal v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.06.2019 Coram The Hon'ble Mr. Justice M.M.SUNDRESH and The Hon'ble Mr. Justice M. NIRMAL KUMAR H.C.P. No.632 of 2019 Bujiyammal ... Petitioner/Mother of the Detenue -vs1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George,Chennai - 600 009.

2.The District Magistrate & District Collector , Tiruvallur District, Tiruvallur.

... Respondents 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 son detention under Tamil Nadu Act 14 of 1982 vide detention order dated 21.02.2019 on the file of the second respondent herein made in proceedings Memo BCDFGISSSV/No.13/2019, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son namely Vinoth @ Vinothkumar, S/o. Elumalai, aged 25 years before this Hon'ble Court and set the petitioner's son at liberty from detention, now the petitioner's son detained at Central Prison - II, Puzhal,Chennai.

For Petitioner : Mr.R.Sasikumar For Respondents :

Mr.R.Prathap Kumar Addl.

Public Prosecutor

ORDER

[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the mother of Vinoth @ Vinothkumar, S/o. Elumalai, aged 25 years, who is the detenu. The detenu has been detained by the second respondent by his order in Memo BCDFGISSSV/No.13/2019, dated 21.02.2019, holding him to be a "Goonda", as contemplated under Section 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 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 21.02.2019. The petitioner made a representation on 21.03.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 22.03.2019. The remarks were duly received on 02.04.2019. 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 11 days in submitting the remarks by the Detaining Authority, of which 4 days were Government Holidays and hence there was an inordinate delay of 7 days in submitting the remarks. It is the further contention of the petitioner that the

remarks were received on 02.04.2019 and there was delay of 28 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 11 days were Government Holidays, hence, there was inordinate delay of 17 days in considering the representation. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 02.05.2019.

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 7 days in submitting the remarks and 17 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 Memo BCDFGISSSV/No.13/2019, dated 21.02.2019, passed by the second respondent is set aside. The detenu, Vinoth @ Vinothkumar, S/o. Elumalai, aged 25 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar

mmi/ssm To 1.The Secretary, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009. 2.The District Magistrate & District Collector , Tiruvallur District, Tiruvallur.

3.The Superintendent, Central Prison II,Puzhal, Chennai.

4.The Joint Secretary to Government, Public(Law & Order), Fort Saint George, Chennai - 9.

5.The Public Prosecutor, High Court, Madras.

+1cc to Mr.R.Sasikumar, Advocate Sr.50721 H.C.P. No. 632 of 2019 nrjk[co] srg 07/08/2019