R.Kumar v. The Principle 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.2537 of 2020 R.Kumar .. Petitioner Vs.

1.The Principal Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-9 2.The District Magistrate and District Collector O/o.The Salem District Collector Salem 3.The Superintendent of Police O/o.The Superintendent of Police Salem 4.The Superintendent of Prison Salem Central Prison, Salem 5.The Inspector of Police Mallur Police Station Salem .. 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 detention order in CMP.No.18/GOONDA/C2/2020 on 24.11.2020 on the file of the 2nd respondent and quash the same and direct the respondents to produce the body and person of the petitioner's son viz. K.Boopalan, S/o.Kumar, aged about 29 years, now confined at Central Prison, Salem, before this Hon'ble Court and set him at liberty forthwith.

For Petitioner : Mr.M.Mohamed Saifulla 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 father of the detenu viz., K.Boopalan, S/o.Kumar, aged about 29 years. The detenu has been detained by the 2nd respondent by his order dated 24.11.2020 in CMP.No.18/GOONDA/C2/2020, 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 24.11.2020. The petitioner made a representation on 07.12.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 07.12.2020. The remarks were duly received on 11.12.2020. 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 4 days in submitting the remarks by the Detaining Authority, of which there was no Government Holidays and hence, there was an inordinate delay of 4 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 11.12.2020 and there was a delay of 29

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 17 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 4 days in submitting the remarks by the Detaining Authority and unexplained delay of 17 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 CMP.No.18/GOONDA/C2/2020, dated 24.11.2020, passed by the 2nd respondent is set aside. The detenu viz., K.Boopalan, S/o.Kumar, aged about 29 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 Principal Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-9 2.The Joint Secretary to Government Public, Law and Order Department Secretariat, Chennai-9 3.The District Magistrate and District Collector O/o.The Salem District Collector Salem 4.The Superintendent of Police O/o.The Superintendent of Police Salem 5.The Superintendent of Prison Salem Central Prison, Salem 6.The Inspector of Police Mallur Police Station Salem 7.The Public Prosecutor High Court, Madras H.C.P.No.2537 of 2020 PPA(CO) CB(24/06/2021)