Gantha v. The State Of Tamil Nadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2019 Coram The Hon'ble Mr. Justice M.M.SUNDRESH and The Hon'ble Mr. Justice M. NIRMAL KUMAR H.C.P. No. 736 of 2019 Gantha ... Petitioner/Mother of the detenue -vs1.State of Tamil Nadu, Rep. By its Secretary, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police, The Greater Chennai City, Vepery, Chennai - 600 007.
... Respondents Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the detention order in Memo No.156/BCDFGISSSV/2019, dated 28.03.2019 passed by the 2nd respondent under the Tamil Nadu Act 14 of 1982 and set aside the same and direct the respondent to produce the petitioner's daughter Jothi W/o. Subramani aged about 43 years the detenue, now confined in Special Prison for Women, Puzhal, Chennai before this Court and set the petitioner's daughter Jothi W/o. Subramani aged about 43 years the detenue herein at liberty.
For Petitioner : Mr.U.Yuvaraj 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 the detenue, Jothi, Wife of Subramani, aged 43 years. The detenue has been detained by the second respondent by his order in Memo No.156/BCDFGISSSV/2019, dated 28.03.2019, holding to be a "Drug Offender", as contemplated under Section 2(e) 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 detenue 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 28.03.2019. The petitioner made a representation dated 03.04.2019. Thereafter, remarks were called for by the Government from the Detaining Authority. The remarks were duly received on 10.04.2019. 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 the remarks were received on 10.04.2019 and there was delay of 20 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 9 days were Government Holidays, hence, there was inordinate delay of 11 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 11 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 No.156/BCDFGISSSV/2019, dated 28.03.2019, passed by the second respondent is set aside. The detenue, Jothi, Wife of Subramani, aged 43 years, is directed to be released forthwith unless her detention is required in connection with any other case.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar mmi/ssm
To:
1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, The Greater Chennai City, Vepery, Chennai - 600 007.
3.The Superintendent Special Prison for Women,Puzhal, Chennai.
4. The Joint Secretary to Government, Public (Law & Order),Fort St.George,Chennai-9. 5.The Public Prosecutor, High Court, Madras.
H.C.P. No.736 of 2019 nr 30/07/2019