Kumari v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 22.06.2021

CORAM

THE HONOURABLE Mr.JUSTICE P.N.PRAKASH AND THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN H.C.P.No.2156 of 2020 Kumari .. Petitioner Vs.

1.The Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai-9 2.The Commissioner of Police Greater Chennai Veppery, Chennai 3.The Superintendent of Police Central Prison, Puzhal, Chennai 4.The Inspector of Police (Law & Order) R-1 Mambalam Police Station Chennai .. 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 in connection with the order of detention passed by the 2nd respondent dated 29.08.2020 in BCDFGISSSV No.339 of 2020 against the petitioner's son Gandhi @ Gundu Gandhi, S/o.Perumal, aged about 30 years, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty.

For Petitioner : Mr.M.Illiyas For Respondents : Mr.R.Muniyapparaj Government Advocate (Crl. Side)

O R D E R

[Order of the Court was made by P.N.PRAKASH, J.] The petitioner is the mother of the detenu viz., Gandhi @ Gundu Gandhi, S/o.Perumal, aged about 30 years. The detenu has been detained by the 2nd respondent by his order dated 29.08.2020 in BCDFGISSSV No.339 of 2020, holding him to be a "GOONDA", as contemplated under Section 2(f) 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 29.08.2020. The petitioner made a representation on 05.11.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 10.11.2020. The remarks were duly received on 02.12.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 11.01.2021.

6. It is the contention of the petitioner that there was a delay of 22 days in submitting the remarks by the Detaining Authority, of which 6 days were Government Holidays and hence, there was an inordinate delay of 16 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 02.12.2020 and there was a delay of 37 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 12 days were Government Holidays, hence, there was inordinate delay of 25 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 16 days in submitting the remarks by the Detaining Authority and unexplained delay of 25 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. In the result, the Habeas Corpus Petition is allowed and the order of detention in BCDFGISSSV No.339 of 2020, dated 29.08.2020, passed by the 2nd respondent is set aside. The detenu viz., Gandhi @ Gundu Gandhi, S/o.Perumal, aged about 30 years, is directed to be released forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar gya

To 1.The Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai-9 2.The Joint Secretary to Government Public, Law and Order Department Secretariat, Chennai-9 3.The Commissioner of Police Greater Chennai Veppery, Chennai 4.The Superintendent of Police Central Prison, Puzhal, Chennai 5.The Inspector of Police (Law & Order) R-1 Mambalam Police Station Chennai 6.The Public Prosecutor High Court, Madras H.C.P.No.2156 of 2020 MG(CO) CB(24/06/2021)