Ranjitha v. The Secretary To The Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 03.12.2021

CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH AND THE HONOURABLE MRS.JUSTICE R.HEMALATHA H.C.P.NO.1106 OF 2021 Ranjitha .. Petitioner .Vs.

1. The Secretary to the Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 09.

2. District Collector & District Magistrate, Tiruvannamalai District, Tiruvannamalai.

3. The Superintendent of Police, Tiruvannamalai District, Tiruvannamalai.

4. The Superintendent of Prison, Central Prison, Vellore.

5. The Inspector of Police, Cheyyar PEW Police Station, Tiruvannamalai District.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a WRIT OF HABEAS CORPUS calling for the records in connection with the order of detention passed by the second respondent dated 13.07.2021 in D.O.No.49/2021-C2 against the petitioner's husband Balamurugan, male aged 31 years, S/o.Palanivel, who is confined at Central Prison Vellore, and set aside the same and direct the respondents to produce the detenu before the Hon'ble Court and set him at liberty. For Petitioner : Mr.C.Pushparaj For Respondents : Mr.R.Muniyappraj Additional Public Prosecutor

O R D E R

[Order of the Court was made by P.N.PRAKASH, J.] The petitioner is the wife of the detenu, Balamurugan, S/o.Palanivel, aged 31 years. The detenu has been detained by the 2nd respondent by his order dated 13.07.2021 in D.O.No.49/2021-C2, holding him to be a "BOOTLEGGER", as contemplated under Section 3(1) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

2.Under normal circumstances, this Court would not have taken this case for final hearing, but for the fact that we have fixed date for final disposal today, in the light of the health condition of the detenu, namely, Balamurugan, it has been recorded in the order dated 24.11.2021 in Crl.M.P.No.11804 of 2021 as under:

"3.On a perusal of the report, we find that the ultrasonography of abdomen of the detenu shows increased liver echoes and fibro scan show fibrosis of liver. The detenu has also been diagonised with Hepatitis B, which is jaundice. The medical report also suggests serial liver function tests are being done to the detenu and the same is being followed up. 4.In such view of the matter, we fix the date for disposal of the main Habeas Corpus Petition on 03.12.2021. In the mean while, the prison authorities are directed to ensure that the detenu is given good medical treatment in the Government Stanley Medical College and Hospital, Chennai."

3. 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.

4. 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.

5. 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.

6. The Detention Order in question was passed on 13.07.2021. The petitioner made a representation on 16.07.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 20.07.2021. The remarks were duly received on 13.08.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 23.08.2021.

7. It is the contention of the petitioner that there was a delay of 24 days in submitting the remarks by the Detaining Authority, of which 7 days were Government Holidays and hence, there was an inordinate delay of 17 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 13.08.2021 and the Hon'ble Minister for Home, Prohibition and Excise Department considered the representation on 15.08.2021 after the Deputy Secretary dealt with it, of which there was no Government Holiday, hence, there was no delay in considering the representation.

8. 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.

9. 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.

10. 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.

11. In the subject case, admittedly, there is an inordinate and unexplained delay of 17 days in submitting the remarks by the Detaining Authority. 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 D.O.No.49/2021-C2 dated 13.07.2021, passed by the 2nd respondent is set aside. The detenu viz., Balamurugan, son of Palanivel, aged 31 years, is directed to be released forthwith unless him detention is required in connection with any other case.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar mtl To

1. The Secretary to the Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 09.

2. The Joint Secretary to Government Public, Law and Order Department Secretariat, Chennai-9.

3. District Collector & District Magistrate, Tiruvannamalai District, Tiruvannamalai.

4. The Superintendent of Police, Tiruvannamalai District, Tiruvannamalai.

5. The Superintendent of Prison, Central Prison, Vellore.

6. The Inspector of Police, Cheyyar PEW Police Station, Tiruvannamalai District.

7. The Public Prosecutor High Court, Madras.

H.C.P.No.1106 of 2021 GSM(CO) PM/03/12/2021