K.Saraswathi v. The District Collector And District Magistrate

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.07.2019

CORAM

THE HON'BLE MR. JUSTICE M.M.SUNDRESH AND THE HON'BLE MR. JUSTICE M. NIRMAL KUMAR H.C.P. NO. 857 OF 2019 K.Saraswathi

...Petitioner/Wife of the Detenue

-Vs1.The District Collector and District Magistrate of Tiruvallur District, Tiruvallur.

2.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

..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 petitioner's husband detention under Act 14 of 1982 vide detention order dated 18.03.2019 on the file of the second respondent herein made in proceedings in Memo No.21/BCDFGISSSV/2019 and quash the same as illegal and produce the person or body of the petitioner's husband namely Krishnamurthy son of Narasimmah Naidu aged 41 years before this Court and set him at liberty, who is now detained at Central Prison, Puzhal, Chennai.

For Petitioner : Mr.A.J.Alwyn Prabakar 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 wife of the detenu, Krishnamurthy, son of Narasimmah Naidu aged 41 years. The detenu has been detained by the first respondent by his order in Memo No.21/BCDFGISSSV/2019, dated 18.03.2019, holding 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 18.03.2019. The petitioner made a representation dated 15.04.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 16.04.2019. The remarks were duly received on 13.05.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 20.05.2019.

6. It is the contention of the petitioner that there was a delay of 27 days in submitting the remarks by the Detaining Authority, of which 12 days were Government Holidays and hence there was an inordinate delay of 15 days in submitting the remarks. It is the contention of the petitioner that the remarks were received on 13.05.2019 and there was delay of 7 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 inordinate delay of 5 days in considering the representation. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 20.05.2019.

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 detenue.

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 15 days in submitting the remarks and 5 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.21/BCDFGISSSV/2019, dated 18.03.2019 passed by the first respondent is set aside. The detenu, Krishnamurthy son of Narasimmah Naidu, is directed to be released forthwith unless his detention is required in connection with any other case.

mmi/ssm Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To 1.The District Collector and District Magistrate of Tiruvallur District, Tiruvallur.

2.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009

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

4. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai -600 009.

5. The Public Prosecutor, High Court, Madras.

H.C.P. No. 857 of 2019 Kak(27/08/2019)