Manickkam v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.04.2022 Coram The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mr. Justice A.A.NAKKIRAN H.C.P.No.1848 of 2021 Manickkam .. Petitioner Vs.

1. State of Tamil Nadu represented by The Secretary to the Government (Home), Prohibition and Excise Department, Secretariat, Chennai-9.

2. The Commissioner of Police, Salem City.

3. The Superintendent, Special Prison for Women, Coimbatore.

4. The Inspector of Police, Annadanapatty Police Station, Salem City.

.. 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 2nd respondent in C.M.P.No.92/I.T.O/Salem City/2021 dated 20.10.2021 against the petitioner's wife viz., Kalaiarasi, aged about 45 years, W/o.Manickkam, who is confined at the Special Prison for Women, Coimbatore and set aside the same and consequently direct the respondents to produce the detenue before this Court and set her at liberty forthwith.

For Petitioner : Mr.R.Nalliyappan For Respondents : Mr.M.Babu Muthumeeran Addl. Public Prosecutor

ORDER

[Made by P.N.PRAKASH, J.] The petitioner is the wife of the detenue Kalaiarasi, aged about 45 years, W/o.Manickkam. The detenue has been detained by the second respondent by his order in C.M.P.No.92/I.T.O/Salem City/2021 dated 20.10.2021, holding her to be a "Immoral Traffic Offender", as contemplated under Section 2(g) 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. He further submitted that the detenue suffers from HIV positive, which has also been confirmed by the prison authorities.

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 detenue 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 20.10.2021. The petitioner made a representation on 05.11.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 09.11.2021. The remarks were duly received on 19.11.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 30.11.2021.

6. It is the contention of the petitioner that there was a delay of 10 days in submitting the remarks by the Detaining Authority, of which, 2 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 19.11.2021 and there was a delay of 4 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, 2 days were Government Holidays, hence, there was an inordinate delay of 2 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 detenue.

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 detenue 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 2 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 C.M.P.No.92/I.T.O/Salem City/2021 dated 20.10.2021, passed by the second respondent is set aside. The detenue, viz., Kalaiarasi, aged about 45 years, W/o.Manickkam, is directed to be released forthwith unless her detention is required in connection with any other case.

Sd/- Assistant Registrar True Copy// Sub Assistant Registrar nsd

To

1. The Secretary to the Government (Home), Prohibition and Excise Department, Secretariat, Chennai-9.

2. The Commissioner of Police, Salem City.

3. The Superintendent, Special Prison for Women, Coimbatore.

4. The Inspector of Police, Annadanapatty Police Station, Salem City.

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.1848 of 2021 NRL[co] NSK/11/04/2022