Anuradha v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10.06.2021 Coram THE HONOURABLE MR. JUSTICE M.DURAISWAMY AND THE HON'BLE MRS.JUSTICE R.HEMALATHA H.C.P.No.2144 of 2020 Anuradha ... Petitioner/Wife of the Detenue Vs.

1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009. 2.The District Magistrate and District Collector, Tiruppur District, Tiruppur.

3.The Superintendent of Police, O/o The Superintendent of Police, Tiruppur, Tiruppur District.

4.The Superintendent of Central Prison, Central Prison, Coimbatore, Coimbatore District.

5.State rep by The Inspector of Police, Avinashi Police Station, Tiruppur District.

... Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records relating to the petitioner's husband detention under Tamil Nadu Act 14 of 1982 vide Detention Order dated 06.10.2020 on the file of the 2nd respondent made in proceedings Memo Cr.M.P.No.23/Goonda/2020, quash the same as illegal and consequently, direct the respondents to produce the petitioner's husband namely Sureshkumar @ Hari @ Harish Acharya, S/o Late Periyasamy, aged 42 years before this Court and set the petitioner's husband at liberty from detention, detained at Central Prison, Coimbatore.

For Petitioner : Mr.W.Camyles Gandhi For Respondents: Mr.R.Muniyapparaj, Government Advocate (Criminal Side)

O R D E R

(Order of the Court made by M.DURAISWAMY, J.) The petitioner is the wife of the detenu, Sureshkumar @ Hari @ Harish Acharya, S/o Late Periyasamy, aged 42 years, who is detained in Central Prison, Coimbatore under Act 14 of 1982 (Tamil Nadu Act). The detenu has been classified as a "Goonda" by the 2nd respondent in his order of detention vide Memo Cr.M.P.No.23/Goonda/2020 dated 06.10.2020. The said order is under challenge in this Habeas Corpus Petition. 2.We have heard Mr.W.Camyles Gandhi, learned counsel appearing for the petitioner and Mr.R.Muniyapparaj, learned Government Advocate (Criminal 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 were not considered on time and there was an inordinate and unexplained delay.

4.The learned Government Advocate opposed the Habeas Corpus Petition and submitted 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, 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 06.10.2020. The representation was made on 07.11.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 10.11.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 30.11.2020.

6.It is the contention of the petitioner that there was a delay of 17 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence

there was an inordinate delay of 14 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 27.11.2020 and there was delay of 3 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, 1 day was a Government Holiday, and there was an inordinate delay of 2 days, hence, there was an inordinate delay of 16 days in considering the representation dated on 07.11.2020.

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 14 days in submitting the remarks by the Detaining Authority and unexplained delay of 2 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 Memo Cr.M.P.No.23/Goonda/2020 dated 06.10.2020, passed by the second respondent is set aside. The detenu, namely, Sureshkumar @ Hari @ Harish Acharya, S/o Late Periyasamy, aged 42 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar(CS-IV) //True Copy// Sub Assistant Registrar

To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009. 2.The District Magistrate and District Collector, Tiruppur District, Tiruppur.

3.The Superintendent of Police, O/o The Superintendent of Police, Tiruppur, Tiruppur District.

4.The Superintendent of Central Prison, Central Prison, Coimbatore, Coimbatore District.

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

6.The Public Prosecutor, High Court, Madras.

7.The Joint Secretary to Government, Public(Law & order) Department, Fort St.George, Chennai.

H.C.P.No.2144 of 2020 VG II(CO) CB(15/06/2021)