Shakila v. The State Of Tamilnadu Rep.By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.11.2021 Coram The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mrs. Justice S.SRIMATHY H.C.P.No.723 of 2021 Shakila .. Petitioner/Wife of detenu Vs.

1. State of Tamil Nadu represented by The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-9.

2. The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police, (Goondas Section), Vepery, Chennai - 600 007.

3. The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.

4. The Assistant Commissioner of Police, Anti Land Grabbing Special Cell - II, Central Crime Branch, Greater Chennai, Vepery, Chennai - 600 007.

.. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to calling for the entire records leading to the detention of the petitioner's husband Abdul Khadar, son of Mohideen Ahmed Shah, male, aged about 41 years, presently lodged in the Central Prison, Puzhal at Chennai and has been detained under Act 14/82 as a "Goonda" vide detention order dated 30.03.2021 on the file of the 2nd

respondent herein, made in Memo No.93/BCDFGISSSV/2021 and 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.R.Muniyapparaj, Addl. Public Prosecutor

ORDER

[Made by P.N.PRAKASH, J.] The petitioner is the wife of the detenu Abdul Khadar, son of Mohideen Ahmed Shah, male, aged about 41 years. The detenu has been detained by the second respondent by his order in Memo No.93/BCDFGISSSV/2021 dated 30.03.2021, 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 strongly opposed the Habeas Corpus Petition by filing his counter. 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 30.03.2021. The petitioner made a representation on 15.04.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 21.04.2021. The remarks were duly received on 26.04.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 04.05.2021.

6. It is the contention of the petitioner that there was a delay of 5 days in submitting the remarks by the Detaining Authority, of which, 2 days were Government Holidays and hence there was an inordinate delay of 3 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 26.04.2021 and there was a delay of 8 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, 2 days were Government Holidays, hence, there was an inordinate delay of 6 days in considering the representation.

7. In Rekha vs. State of Tamil Nadu (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 (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 3 days in submitting the remarks by the Detaining Authority and unexplained delay of 6 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. In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No.93/BCDFGISSSV/2021 dated 30.03.2021, passed by the second respondent is set aside. The detenu, viz., Abdul Khadar, son of Mohideen Ahmed Shah, male,

aged about 41 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Deputy Registrar (CS) //True Copy// Sub Assistant Registrar nsd To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-9.

2.The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police, (Goondas Section), Vepery, Chennai - 600 007.

3.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.

4.The Assistant Commissioner of Police, Anti Land Grabbing Special Cell - II, Central Crime Branch, Greater Chennai, Vepery, Chennai - 600 007.

5.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

6.The Public Prosecutor, High Court, Madras.

H.C.P.No.723 of 2021 GPL (CO) PR (09/11/2021)