Shillpa v. The State Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.06.2021

CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH and THE HONOURABLE MR.JUSTICE R.PONGIAPPAN H.C.P.No.2560 of 2020 Shilpa, W/o.Late.Raji Pat ...

Petitioner / Mother of the detenu versus

1. The State of Tamil Nadu, Rep. by its Secretary to Government, Home, Prohibition and Excise (XVI) Department, Fort St.George, Secretariat, Chennai - 600 009.

2. The District Collector and District Magistrate of Vellore, Vellore District.

3. The Superintendent of Police, Vellore District, Vellore.

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

5. The Inspector of Police, Prohibition Enforcement Wing, Gudiyatham, Vellore District.

...

Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the second respondent dated 30.11.2020 in his Office Ref.C3/D.O.No.103/2020 against the petitioner's son by name Kaviyarasan, son of Late.Raji Pat, aged about 21 years, now under the custody of the 4th respondent namely Central Prison, Vellore, Vellore District and set aside the same and direct the respondents to produce the above said detenu before this Court and set him at liberty.

For Petitioner : Mr.E.Kannadasan For Respondents : Mr.J.C.Durairaj Government Advocate (Crl. Side)

O R D E R

[Order of the Court was made by R.PONGIAPPAN, J.] The petitioner is the mother of Kaviyarasan, son of Late.Raji Pat, aged about 21 years, who is the detenu. The detenu has been detained by the second respondent by its order dated 30.11.2020 in C3/D.O.No.103/2020, holding him to be a "Bootlegger", as contemplated under Section 2(b) 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 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 this Petition, 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 this 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 30.11.2020. The petitioner made a representation on 15.12.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 19.12.2020. The remarks were duly received on 30.12.2020. 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 11 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence, there was an inordinate delay of 8 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 30.12.2020 and there was a delay of 10 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 3 days were Government Holidays, hence, there was inordinate delay of 7 days 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 8 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 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 C3/D.O.No.103/2020 dated 30.11.2020, passed by the second respondent is set aside. The detenu, viz. Kaviyarasan, son of Late.Raji Pat, aged about 21 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar sri

To

1. The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise (XVI) Department, Fort St.George, Secretariat, Chennai - 600 009.

2. The District Collector and District Magistrate of Vellore, Vellore District.

3. The Superintendent of Police, Vellore District, Vellore.

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

5. The Inspector of Police, Prohibition Enforcement Wing, Gudiyatham Vellore 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.2560 of 2020 RP(CO) CS/08/07/2021