Lakshmi F/A 46 Yrs, v. The State Of Tamilnadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 11.10.2017 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.854 of 2017 Lakshmi ... Petitioner Vs.

1.The State of Tamil Nadu Rep. By its Secretary to Govt.

Home, Prohibition and Excise (XVI) Department Fort St. George, Chennai - 600 009.

2.The Commissioner of Police, Chennai Police, Vepery, Chennai - 7.

...Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records leading to the detention of the petitioner's son Selvam, S/o.Murthy, male aged about 26 years is presently lodged in Central Prison Puzhal, at Chennai and has been detained under Act 14/82 as a "Goonda" vide detention order dated 11.05.2017 on the file of the 2nd respondent herein, made in Memo No.258/BCDFGISSSV/2017 quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Puzhal, Chennai.

For Petitioner : Mr.M.Rajavelu 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 mother of the detenu, namely, Selvam, S/o.Murthy, male, aged about 26 years. The detenu has been detained by the second respondent by his order in Memo No.258/BCDFGISSSV/2017 dated 11.05.2017, 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 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 11.05.2017. The petitioner made two representations dated 29.05.2017 & 15.05.2017 and the same were received on 30.05.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 30.05.2017. The remarks were duly received on 06.06.2017 in respect of the first representation. Insofar as the second representation is concerned, the remarks were duly received on 30.05.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representations on 21.06.2017 & 16.06.2017.

6. It is the contention of the petitioner that there was a delay of 7 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was an inordinate delay of 5 days in submitting the remarks. Thereafter, another delay of 15 days in considering the first representation, of which 4 days were Government Holidays and hence, there was an inordinate delay of 11 days in considering the first representation and in sofar as the second representation is concerned, there was a delay of 17 days in considering the same, of which 4 days were Government Holidays and hence, there was an inordinate delay of 13 days in considering the second 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 5 days in submitting the remarks by the Detaining Authority, 11 days in considering the first representation and 13 days in considering the second 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.258/BCDFGISSSV/2017 dated 11.05.2017, passed by the second respondent is set aside. The detenu, namely, Selvam, S/o.Murthy, male, aged about 26 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/- Asst.Registrar (CS VI) /true copy/ Sub Asst. Registrar To 1.The Secretary to the Government, Home, Prohibition and Excise Department Secretariat, Chennai - 600 009.

2.The Joint Secretary to Government, Public Law & Order Department Secretariat, Chennai - 600 009.

3.The Commissioner of Police, Chennai Police, Vepery, Chennai - 7.

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.854 of 2017 NR 11/10/2017