P.M.Mathi, Aged 51 Years, v. The Secretary To Govt.,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.09.2018

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR H.C.P.No.830 of 2018 P.M.Mathi W/o.Manoharan ...

Petitioner vs.

1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600009.

2. The Commissioner of Police/ Detaining Authority, City Police Office, Huzur Road, Coimbatore City, Coimbatore - 18.

...

Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the entire records relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order dated 05.04.2018 on the file of second respondent herein made in proceedings Memo C.No.38/G/IS/2018, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son namely M.Arun @ Arun Hassan @ Arun Regan, S/o.Manoharan, aged 33 years, before this Court and set the petitioner's son at liberty from detention, now the petitioner's son detained at Central Prison, Coimbatore.

For Petitioner : Mr.W.Camyles Gandhi For Respondents: Mr.M.Mohamed Riyaz Additional Public Prosecutor

O R D E R

(Order of the Court was made by C.T.SELVAM, J) Petitioner is the mother of the detenu M.Arun @ Arun Hassan @ Arun Regan, who has been branded as "Goonda" under the Tamil Nadu Act 14 of 1982 and detained under orders of second respondent passed in C.No.38/G/IS/2018 dated 05.04.2018. Such order is under challenge herein.

2. The detenu came to adverse notice in the following cases:

Sl.No. Police Station and Crime No.

Offences u/s.

1.

Coimbatore District, Vadavalli Police Station, Crime No.6/2017 294(b), 448, 427, 506(i) IPC & 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002 2.

Coimbatore City, B-2 R.S.Puram Police Station, Crime No.149/2018 147, 341, 323, 363, 506(i), 379 IPC @ 147, 341, 294(b), 323, 324, 363, 506 (i) and 386 IPC The alleged ground case has been registered against the detenu in Crime No.313 of 2018 on the file of Coimbatore City, B-2 R.S.Puram Police Station, for offences u/s.323, 506(ii) IPC and 3(i) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. Aggrieved by the order of detention, the present writ petition has been filed.

3. We have heard learned counsel for petitioner and learned Additional Public Prosecutor for respondents. Perused the materials on record.

4. Though several grounds have been raised in the Habeas Corpus Petition, learned counsel for 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. In support of his contention, learned counsel for petitioner relied on the judgment of the Hon'ble Apex Court in Rajammal vs. State of Tamil Nadu, [(1999) 1 SCC 417].

5. Learned Additional Public Prosecutor would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to 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 05.04.2018. The petitioner submitted a representation dated 19.04.2018 and the same was received on 20.04.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day. The remarks were duly received on 30.04.2018. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 11.05.2018 and sent to the detenu on 14.05.2018.

7. It is the contention of the petitioner that there was an inordinate delay of 10 days, of which 4 days were Government holidays, in submitting the remarks by the Detaining Authority. Thereafter, there was yet another delay of 10 days, of which 5 days were Government holidays and hence, there was yet another delay of 5 days in considering the representations.

8. In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows: 'It is a constitutional obligation of the Government to consider the representation forwarded by the detenue without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest.'

9. As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here 11 days delay has not been properly explained at all.

10. Further, in a recent decision in Ummu Sabeena vs. State of Kerala [2011 STPL (Web) 999 SC], the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

11. In the light of the above fact and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representations of the detenu.

Accordingly, the Habeas Corpus Petition is allowed and the detention order passed by the second respondent against the detenu M.Arun @ Arun Hassan @ Arun Regan S/o.Manoharan in C.No.38/G/IS/2018 dated 05.04.2018 is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case.

-s/d- Assistant Registrar(CS-IX) True Copy Sub-Assistant Registrar gm To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600009.

2.The Commissioner of Police/ Detaining Authority, City Police Office, Huzur Road, Coimbatore City, Coimbatore - 18.

3.The Public Prosecutor, High Court, Madras.

4.The Superintendent of Police, Central Prison, Coimbatore.

5. The Joint Secretary to Government Public(law and order) Fort. St. George Chennai 9.

H.C.P.No.830 of 2018 SP(26/09/2018)