Vaishali v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 12.04.2022 Coram The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mr. Justice A.A.NAKKIRAN H.C.P.No.1758 of 2021 Vaishali .. Petitioner Vs.

1. State represented by The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009.

2. The Commissioner of Police, Office of Commissioner of Police, Greater City Police Chennai, Vepery, Chennai - 600 007.

3. The Superintendent of Prison, Central Prison-Puzhal, Chennai.

4. The Inspector of Police, Anti Land Grabbing Special Cell, Central Crime Branch, Team-26, Chennai.

.. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records of the 2nd respondent in connection with the order made in No.275/BCDFGISSSV/2021 dated 23.09.2021 passed against the petitioner's husband Arivunithi, aged 27 years, S/o.Kumar, who is confined at the Central Prison, Puzhal, Chennai - 66 and quash the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr.P.K.Ilavarasan For Respondents : Mr.M.Babu Muthumeeran Addl. Public Prosecutor

ORDER

[Made by P.N.PRAKASH, J.] The petitioner is the wife of the detenu Arivunithi, aged 27 years, S/o.Kumar. The detenu has been detained by the second respondent by his order in No.275/BCDFGISSSV/2021 dated 23.09.2021, 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 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 by filing his counter. 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 23.09.2021. The petitioner made a representation on 08.10.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 18.10.2021. The remarks were duly received on 29.10.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 26.11.2021.

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 29.10.2021 and there was a delay of 28 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, 8 days were Government Holidays, hence, there was an inordinate delay of 20 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 20 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 No.275/BCDFGISSSV/2021 dated 23.09.2021, passed by the second respondent is set aside. The detenu, viz., Arivunithi, aged 27 years, S/o.Kumar, 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 Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009.

2. The Commissioner of Police, Office of Commissioner of Police, Greater City Police Chennai, Vepery, Chennai - 600 007.

3. The Superintendent of Prison, Central Prison-Puzhal, Chennai.

4. The Inspector of Police, Anti Land Grabbing Special Cell, Central Crime Branch, Team-26, Chennai.

5. The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

6. The Public Prosecutor, High Court, Madras.

H.C.P.No.1758 of 2021 GPL(CO) CT 22/04/2022