G.Baby Shalini v. The Secretary To The Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.06.2021 CORAM :

THE HONOURABLE MR. JUSTICE M. DURAISWAMY AND THE HONOURABLE MRS. JUSTICE R. HEMALATHA H.C.P.No.2240 of 2020 G. Baby Shalini ... Petitioner v.

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

2. The District Collector and District Magistrate, Villupuram District, Villupuram.

3.The Superintendent of Police, Office of the Superintendent of Police, Villupuram , VillupuramDistrict.

4. The Superintendent of Prison, Central Prison, Cuddalore, Cuddalore District. 5.The State rep by, The Inspector of Police, Villupuram West Police Station, Villpuram District.

... Respondents Habeas Corpus 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 Petitioner's husband detention under Tamil Nadu Act 14 of 1982 vide detention order dated 07.11.2020 on the file of the second respondent herein made in proceedings Memo Rc.No.C2/25976/2020, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely Nollakarthik @ Gnanaprakasam, S/o. Muthukrishnan, aged 31 years before this Court and set the petitioner's husband at liberty from detention, now petitioner's husband detained at Central Prison, Cuddalore.

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

ORDER

[Order of the Court was made by M. DURAISWAMY, J.] The petitioner is the wife of the detenu viz., Nollakarthik @ Gnanaprakasam aged about 31 years, son of Muthukrishnan. The detenu has been detained by the second respondent by his order in Rc.No.C2/25976/2020 dated 07.11.2020, 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 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) strongly opposed the Habeas Corpus Petition by submitting 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 07.11.2020. The petitioner made a representation on 20.11.2020.

Thereafter, remarks were called for by the Government from the Detaining Authority on 05.11.2020. The remarks were duly received on 14.12.2020. 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 23 days in submitting the remarks by the Detaining Authority, of which 7 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 14.12.2020 and there was a delay of 26 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 9 days were Government Holidays, hence, there was inordinate delay of 15 days in considering the representation.

7. In Rekha vs. State of Tamil Nadu (2011 (5) SCC 374), 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 16 days in submitting the remarks by the Detaining Authority and unexplained delay of 15 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 Rc.No.C2/25976/2020 dated 07.11.2020, passed by the second respondent is set aside. The detenu, viz., Nollakarthik @ Gnanaprakasam aged about 31 years, son of Muthukrishnan 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 rj To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai - 600 009. 2.The District Collector and District Magistrate, Villupuram District, Villupuram.

3.The Superintendent of Police, Office of the Superintendent of Police, Villupuram , VillupuramDistrict.

4.The Superintendent of Prison, Central Prison, Cuddalore, Cuddalore District. 5.The State rep by, The Inspector of Police, Villupuram West Police Station, Villpuram District.

6.The Joint Secretary to Government, Public(Law & Order), Fort Saint George, Chennai - 9.

7.The Public Prosecutor, High Court, Madras.

H.C.P.No.2240 of 2020 rgn[co] srg 15/06/2021