Ganesh Babu v. The Secretary To The Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.07.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S.RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Ganesh Babu .. Petitioner/ Son of the detenue

Versus

1. The Secretary to the Government, Home Prohibition and Excise Dept., Secretariat, Chennai - 600 009.

2. District Collector & District Magistrate, Kallakurichi District, Kallakurichi.

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

4. The Superintendent of Prison, Central Prison, Cuddalore - 4.

5. The Inspector of Police, Ulundurpet Police Station, Kallakurichi District.

.. Respondents Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus, to call for the 1/8

records in connection with the order of detention passed by the second respondent dated 31.03.2024 in D.O.No.C2/06/2024 against the petitioner father Anbazhagan, male, aged 58 years, S/o.Kaliyan, who is confined at Central Prison, Cuddalore and set aside the same and direct the respondents to produce the detenue before this Court and set him at liberty. For Petitioner : Mr.D.Balaji For Respondents : Mr.A.Gokulakrishnan, Additional Public Prosecutor

ORDER

M.S.RAMESH , J.

and SUNDER MOHAN, J.

The petitioner, who is the son of the detenue Anbazhagan, S/o.Kaliyan, aged about 58 years, now confined at Central Prison, Cuddalore, has come forward with this petition challenging the detention order passed by the second respondent dated 31.03.2024 slapped on his father, branding him as "Goonda" under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].

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2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel for the petitioner focused mainly on the ground that there is an unexplained delay in considering the undated representation of the petitioner. According to the learned counsel for the petitioner, though the representation is dated 04.04.2024, the same has been received by the Government only on 08.04.2024; the file has been dealt with by the Deputy Secretary on 18.04.2024 and the Minister concerned dealt with the file only on 24.04.2024 and the Rejection Letter was prepared on 26.04.2024 and sent to the detenue on 26.04.2024. It is the further submission of the learned counsel that the delay of 6 days in considering the representation remains unexplained and the same vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Rajammal Vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.

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4. As per the submission of the learned counsel for the petitioner and on perusal of the records, we find that the representation of the petitioner was received by the Government on 08.04.2024 and further, the Minister concerned had dealt with the file of the detenue only on 24.04.2024 and the Rejection Letter was sent to the detenue on 26.04.2024. Thus, we find there is a considerable delay of 6 days in considering the representation of the petitioner. This delay of 6 days in considering the petitioner's representation remains unexplained.

5. It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of 6 days. Therefore, we have to hold that the delay has vitiated further detention of the detenue.

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6. In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows:

"It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest."

As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here the inordinate delay of 6 days has not been properly explained at all.

7. Further, in a recent decision in Ummu Sabeena vs. State of Kerala-2011 STPL (Web) 999 SC, the Hon'ble Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the 5/8

Constitution that the representation, made on behalf of the detenue, should be considered and disposed of with a sense of urgency and without any avoidable delay.

8. In the light of the above discussion, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the petitioner.

9. Accordingly, the detention order passed by the second respondent, in D.O.No.C2/06/2024, dated 31.03.2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenue viz., Anbazhagan, S/o.Kaliyan, aged about 58 years, confined at Central Prison, Cuddalore, is directed to be set at liberty forthwith unless he is required in connection with any other case.

[M.S.R., J] [S.M., J] 22.07.2024 Index : yes/no Speaking order/Non-speaking order : yes/no grs 6/8

To

1. The Secretary to the Government, Home Prohibition and Excise Dept., Secretariat, Chennai - 600 009.

2. The District Collector & District Magistrate, Kallakurichi District, Kallakurichi.

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

4. The Superintendent of Prison, Central Prison, Cuddalore - 4.

5. The Inspector of Police, Ulundurpet Police Station, Kallakurichi District.

6. The Public Prosecutor, High Court of Madras.

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M.S.RAMESH, J.

AND SUNDER MOHAN, J.

grs 22.07.2024 8/8