Sekar v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.01.2022

CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH AND THE HONOURABLE MRS.JUSTICE R.HEMALATHA H.C.P.NO. 1179 OF 2021 Sekar

...Petitioner

Vs.

1. The Additional Chief Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

2. The District Magistrate and District Collector, Office of the District Magistrate and District Collector, Tiruppur District.

3. The Superintendent of Police, Office of the Superintendent of Police, Tiruppur District.

4. The Superintendent of Prison, Special Prison for Women, Coimbatore.

5. The Inspector of Police, Kangayam Police Station, Tiruppur District.

...Respondents

Petition filed under Article 226 of the Constitution of India, praying to issue a WRIT OF HABEAS CORPUS to call for the entire records connected with the detention order of the Respondent No.2 in Cr.M.P.No.24/DRUG OFFENDER/2021 dated 17.07.2021 and quash the same and direct the respondents to produce the body or person of the detenue by name Jayalakshmi, wife of Sekar, aged 47 years, now detained as "Drug Offender" at Coimbatore Special Prison for women before this Hon'ble Court and set her at liberty forthwith.

For petitioner :

Mr.B.M.Santharam For respondents :

Mr.R.Muniyapparaj, Additional Public Prosecutor.

O R D E R

[R.HEMALATHA, J.] The petitioner is the husband of the detenue, Tmt.Jayalakshmi, W/o.Sekar, aged 47 years. The detenue has been detained by the 2nd respondent by his order dated 17.07.2021 in Cr.M.P.No.24/DRUG OFFENDER/2021, holding her 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 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 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 17.07.2021. The petitioner made a representation on 29.07.2021. Thereafter, remarks were called for by the Government from the Detaining

Authority on 02.08.2021. The remarks were duly received on 10.08.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 14.08.2021.

6. It is the contention of the petitioner that there was a delay of 8 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence, there was a delay of 6 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 10.08.2021 and there was a delay of 4 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 1 day was Government Holiday, hence, there was an unexplained delay of 3 days in considering the representation.

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 6 days in submitting the remarks by the Detaining Authority and an unexplained delay of 3 days 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 Cr.M.P.No.24/DRUG OFFENDER/2021, dated 17.07.2021, passed by the 2nd respondent is set aside. The

detenue Tmt.Jayalakshmi, female, aged 47 years, W/o.Sekar, is directed to be released forthwith, unless her detention is required in connection with any other case.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar mtl To

1. The Additional Chief Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

2. The District Magistrate and District Collector, Office of the District Magistrate and District Collector, Tiruppur District.

3. The Superintendent of Police, Office of the Superintendent of Police, Tiruppur District.

4. The Superintendent of Prison, Special Prison for Women, Coimbatore.

5. The Inspector of Police, Kangayam Police Station, Tiruppur District.

6. The Joint Secretary to Government, Public, Law and Order Department, Secretariat, Chennai 600 009.

7. The Public Prosecutor, High Court, Madras.

H.C.P.No.1179 of 2021 RP(CO) RLP(24/01/2022)