R.Shanthi v. The Secretary To Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2021
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH AND THE HONOURABLE Mrs.JUSTICE R.HEMALATHA H.C.P.No. 953 of 2021 R. Shanthi
...Petitioner
Vs.
1.
The Secretary to Government, Home, Prohibition and Excise Department For St. George, Chennai 600 009.
2.
The Additional Chief Secretary to Government, Home, Prohibition and Excise Department For St. George, Chennai 600 009.
3.
The District Collector and District Magistrate, Villupuram District, Villupuram.
4.
The Superintendent of Police, Villupuram District, Villupuram.
5.
The Superintendent of Prison, Central Prison, Cuddalore, Cuddalore District.. 6.
The Inspector of Police, PEW - Kottakuppam Police Station, Villupuram District.
...Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a WRIT OF HABEAS CORPUS to call for the records relating to the impugned order of detention dated 28.04.2021 in RC.No.C2/11390/2021 passed by the 3rd respondent herein and quash the same and consequently directed the respondents to set forth the detenu Sivakumar, S/o.Ramalingam, aged 27 years now confined in Central Prison, Cuddalore before this Hon'ble Court and set him at liberty.
For petitioner :
Mr. D. Prasanna Kumar.
For respondents :
Mr.R.Muniyapparaj, Additional Public Prosecutor.
O R D E R
[Order of the Court was made by R.HEMALATHA, J.] The petitioner is the mother of the detenu. The detunu has been detained by the 3rd respondent by his order dated 28.04.2021 in RC.No.C2/11390/2021, holding him to be a "Bootlegger", as contemplated under Section 2(b) of the 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 filed his counter affidavit and strongly 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 28.04.2021. The petitioner made a representation on 05.06.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 08.06.2021. The remarks were duly received on 09.07.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 09.08.2021.
6. It is the contention of the petitioner that there was a delay of 31 days in submitting the remarks by the Detaining
Authority, of which 8 days were Government Holidays and hence, there was a delay of 23 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 09.07.2021 and there was a delay of 1 day in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it.
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 23 days in submitting the remarks by the Detaining Authority and an unexplained delay of 1 day in considering the representation by the Hon'ble Minister for Home, 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 RC.No.C2/11390/2021 dated 28.04.2021, passed by the 3rd respondent is set aside. The detenu Sivakumar, aged 27 years, S/o.Ramalingam, is directed to be released forthwith, unless his detention is required in connection with any other case.
Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar bga
To 1.The Secretary to Government, Home, Prohibition and Excise Department For St. George, Chennai 600 009.
2.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department For St. George, Chennai 600 009.
3.The Joint Secretary to Government, Public, Law and Order Department, Secretariat, Chennai 600 009.
4.The District Collector and District Magistrate, Villupuram District, Villupuram.
5.The Superintendent of Police, Villupuram District, Villupuram.
6.The Superintendent of Prison, Central Prison, Cuddalore, Cuddalore District.. 7.The Inspector of Police, PEW - Kottakuppam Police Station, Villupuram District.
8.The Public Prosecutor, High Court, Madras.
H.C.P.No.953 of 2021 PPA (CO) PR (18/11/2021)