Narayan v. The Commissioner Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.02.2022 Coram THE HONOURABLE MR. JUSTICE P.N.PRAKASH and THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN H.C.P.No.1647 of 2021 Narayan .. Petitioner Vs.

1.The Commissioner of Police, Office of the Commissioner of Police, Salem City & District.

2.The Secretary/Additional Chief Secretary, Home, Prohibition and Excise Department, Government of Tamil Nadu, Secretariat, Fort St.George, Chennai - 600 009.

3.The Inspector of Police, Shevapet Police Station, Salem District.

Crime No.306 of 2021 4.The Superintendent of Prisons, Central Prison - Salem, Hasthampatti, Salem - 636 007.

5.The Superintendent, District Jail, Attur, Salem District.

.. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus calling for the records in C.M.P.No.55/Goonda/Salem City/2021 on the file of the first respondent, quash the order of detention dated 02.08.2021 and direct the production of the detenu Sureshkumar s/o.Devaram, aged 30 years, who is detained in Central Prison, Salem, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act (Act 14 of 1982) before this Court and set the detenu Suresh kumar S/o.Devaram at liberty.

For Petitioner :

Mr.R.John Sathyan For Respondents:

Mr.R.Muniyapparaj Additional Public Prosecutor *****

ORDER

[Order of the Court was made by A.A.NAKKIRAN, J] The petitioner is the brother of the detenu viz., Sureshkumar s/o.Devaram, aged 30 years. The detenu has been detained by the first respondent by his order in C.M.P.No.55/Goonda/Salem City/2021 dated 02.08.2021, holding him to be a "Goonda", as contemplated under Section 2(f) of the 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. 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 Additional Public Prosecutor strongly 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 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.

5. The Detention Order in question was passed on 02.08.2021. The petitioner made a representation dated 13.08.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 16.08.2021. The remarks were duly received on 14.09.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 28.10.2021.

6. It is the contention of the petitioner that there was a delay of 28 days in submitting the remarks by the Detaining Authority, of which 10 days were Government Holidays and hence, there was an inordinate delay of 18 days in submitting the remarks. It is the further contention of the petitioner that the

remarks were received on 14.09.2021 and there was a delay of 1 day in considering the representation by the Hon'ble Minister for Home, P&E after the Deputy Secretary dealt with it. Hence, there was inordinate delay of 1 day in considering the representation.

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 18 days in submitting the remarks by the Detaining Authority and unexplained delay of 1 day in considering the representation by the Hon'ble Minister for Home, P&E. 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 C.M.P.No.55/Goonda/Salem City/2021 dated 02.08.2021 passed by the first respondent is set aside. The detenu, viz., Sureshkumar s/o.Devaram, aged 30 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar gm

To 1.The Commissioner of Police, Office of the Commissioner of Police, Salem City & District.

2.The Secretary/Additional Chief Secretary, Home, Prohibition and Excise Department, Government of Tamil Nadu, Secretariat, Fort St.George, Chennai - 600 009.

3.The Inspector of Police, Shevapet Police Station, Salem District.

Crime No.306 of 2021 4.The Superintendent of Prisons, Central Prison - Salem, Hasthampatti, Salem - 636 007.

5.The Superintendent, District Jail, Attur, Salem 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.1647 of 2021 MG(CO) A.SK(09.02.2022)