Ponmalar v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021 Coram The Hon'ble Mr. Justice P.N.PRAKASH and The Hon'ble Mr. Justice V.SIVAGNANAM H.C.P. No. 1787 of 2020 Ponmalar .. Petitioner Vs 1.The State of Tamil Nadu Rep. by its Secretary to Government, Department of Prohibition and Excise (Home), Fort St.George, Chennai - 9.
2.The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.
3.The Superintendent of Police, Office of the Superintendent, Nagapattinam District, Nagapattinam.
4.The Inspector of Police, PEW, Sirkazhi Wing, Nagapattinam District.
5.The Superintendent of Prison, Central Prison, Thiruchirapalli.
.. Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Habeas Corpus to call for the records in C.O.C.No.28/2020 dated 18.07.2020 on the file of the second respondent herein and set aside the same as illegal and produce the detenu Vijayakumar, son of Mani, aged about 38 years, who is confined at Central Prison, Thiruchirapalli, before this Court and set him at liberty.
For Petitioner :
Mr.Ilayaraja Kandasamy For Respondents :
Mr.R.Prathap Kumar, Addl.Public Prosecutor
ORDER
[Order of the Court was made by V.SIVAGNANAM, J.] The petitioner is the wife of Vijayakumar, son of Mani, aged about 38 years, who is the detenu. The detenu has been detained by the second respondent by his order in C.O.C.No.28/2020 dated 18.07.2020, holding him to be a "Bootlegger", as contemplated under Section 2(b) 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 18.07.2020. The petitioner made a representation on 23.11.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 27.11.2020. The remarks were duly received on 05.01.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 18.01.2021.
6. It is the contention of the petitioner that there was a delay of 39 days in submitting the remarks by the Detaining Authority, of which 13 days were Government Holidays and hence there was an inordinate delay of 26 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 05.01.2021 and there was a delay of 4 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the
Deputy Secretary dealt with it, hence, there was inordinate delay of 4 days in considering the representation.
7. In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the Honourable 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 Honourable 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 26 days in submitting the remarks by the Detaining Authority and unexplained delay of 4 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 C.O.C.No.28/2020 dated 18.07.2020, passed by the second respondent is set aside. The detenu, namely,Vijayakumar, son of Mani, aged about 38 years, is directed to be released forthwith unless his detention is required in connection with any other case.
Sd/- Asst.Registrar (CS VI) /true copy/ Sub Asst. Registrar mmi
To 1.The Secretary to Government, State of Tamil Nadu Department of Prohibition and Excise (Home), Fort St.George, Chennai - 9.
2.The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.
3.The Superintendent of Police, Office of the Superintendent, Nagapattinam District, Nagapattinam.
4.The Inspector of Police, PEW, Sirkazhi Wing, Nagapattinam District.
5.The Superintendent of Prison, Central Prison, Thiruchirapalli.
6.The Public Prosecutor, High Court, Madras.
7.The Joint Secretary to Government Public( Law& Order) Fort St.George, Chennai-9.
H.C.P. No. 1787 of 2020 PM(CO) NRA(09/03/2021)