S.Prabu v. The District Collector Cum

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 14.08.2019 Coram The Hon'ble Mr. Justice M.M.SUNDRESH and The Hon'ble Mr. Justice M.NIRMAL KUMAR H.C.P. No. 1083 of 2019 S.Prabu ... Petitioner -vs1.The District Collector cum District Magistrate Cuddalore, Cuddalore District.

2.The Secretary to Government, Home,Prohibition and Excise Department, Secretariat, 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 pertaining to the order of the 1st respondent dt.30.04.2019 in C3/D.O.29/2019 detaining the detenue Sundari W/o. Sekar, aged 66 years as Bootlegger under the Tamilnadu Act 14 of 1982 and set aside the same and direct the respondents to produce the said detenue now detained in the Special Prison for Women, Vellore before this Court and set her at liberty.

For Petitioner : Mr.R.Srinivas For Respondents :

Ms.R.Saradha Devi Government Advocate (Crl.Side)

ORDER

[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the son of the detenue, Sundari W/o. Sekar, aged 66 years. The detenue has been detained by the first respondent by his order in C3/D.O.29/2019 dated 30.04.2019, holding 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 Government Advocate (Crl. Side) 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 Government Advocate (Crl. Side) 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 Government Advocate (Crl. Side), 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 30.04.2019. The petitioner made a representation dated 03.06.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 10.06.2019. The remarks were duly received on 28.06.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 05.07.2019.

6. It is the contention of the petitioner that the remarks were received on 28.06.2019 and there was a delay of 18 days in submitting the remarks of which 4 days are Government holidays. It is the further contention of the learned counsel for the petitioner that there was a 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 05.07.2019.

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 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 14 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 C3/D.O.29/2019 dated 30.04.2019, passed by the first respondent is set aside. The detenue, Sundari W/o. Sekar, aged 66 years, is directed to be released forthwith unless her detention is required in connection with any other case.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar mmi/ssm To 1.The District Collector cum District Magistrate Cuddalore, Cuddalore District.

2.The Secretary to Government, Home,Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009 3.The Superintendent, Special Prison for Women, Vellore

4.The Joint Secretary to Govt., Public (Law & Order) Fort.St.George, Chennai-9.

5.The Public Prosecutor, High Court, Madras.

+1cc to Mr.R.Srinivas, Advocate, SR.70184 H.C.P. No. 1083 of 2019 NMI(CO) CB(09/10/2019)