Muniyammal v. The Secretary To The Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.01.2022
CORAM
The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mrs. Justice R.HEMALATHA H.C.P.No.1523 of 2021 Muniyammal .. Petitioner/Wife of the detenue Vs.
1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate of Ranipet District, Ranipet-1.
3.The Superintendent of Police, Ranipet District, Ranipet.
4.The Superintendent of Prison, Central Prison, Vellore-2.
5.The Inspector of Police, Avalur Police Station, Ranipet District.
.. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records in connection with the order of detention passed by the second respondent dated 18.09.2021 in B3/D.O.No.73/2021 against the petitioner's husband Pachaiyappan, male, aged 37 years, S/o.Balaraman, who is confined at the Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : Mr.D.Balaji For Respondents : Mr.R.Muniyapparaj, Addl. Public Prosecutor
ORDER
[Made by P.N.PRAKASH, J.] The petitioner is the wife of the detenu Pachaiyappan, male, aged 37 years, S/o.Balaraman. The detenu has been detained by the second respondent by his order in B3/D.O.No.73/2021, dated 18.09.2021, 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 Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.
3.
The detention order in this case has been clamped only on 18.09.2021. Under normal circumstances, this Court would not have taken this case for final disposal, but, for the fact that the detenu's father Balaraman died on 22.01.2022 and the detenu was not allowed to attend the funeral on that day, as his request for emergency leave under Section 15 of the Tamil Nadu Act 14 of 1982 has been rejected by the Government. That apart, the detenu has been detained as a "Bootlegger" and there are no previous cases against him.
4.
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.
5. However, the learned Additional Public Prosecutor very strongly opposed for taking up this case out of turn and he has also filed his counter affidavit to that effect. 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 Additional Public Prosecutor, 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.
6. The Detention Order in question was passed on 18.09.2021. The petitioner made a representation on 24.09.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 28.09.2021. The remarks were duly received on 18.10.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 29.10.2021.
7. It is the contention of the petitioner that there was a delay of 20 days in submitting the remarks by the Detaining Authority, of which, 8 days were Government Holidays and hence there was an inordinate delay of 12 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 18.10.2021 and there was a delay of 11 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 4 days were Government Holidays, hence, there was an inordinate delay of 7 days in considering the representation.
8. 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.
9. 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.
10. 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.
11. In the subject case, admittedly, there is an inordinate and unexplained delay of 12 days in submitting the remarks by the Detaining Authority and unexplained delay of 7 days in considering the representation by the Hon'ble Minister for Home, 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 B3/D.O.No.73/2021, dated 18.09.2021, passed by the second respondent is set aside. The detenu, viz., Pachaiyappan, male, aged 37 years, S/o.Balaraman, is directed to be released forthwith unless his detention is required in connection with any other case.
Sd/- Assistant Registrar(co) //True Copy// Sub Assistant Registrar nsd
To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate of Ranipet District, Ranipet-1.
3.The Superintendent of Police, Ranipet District, Ranipet.
4.The Superintendent of Prison, Central Prison, Vellore-2.
5.The Inspector of Police, Avalur Police Station, Ranipet District.
6.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.
7.The Public Prosecutor, High Court, Madras.
H.C.P.No.1523 of 2021 SRA(CO) A.SK(04.02.2022)