Jaibunisha v. Additional Chief Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Jaibunisha W/o.Sharfudheen ..
Petitioner/ Wife of detenu Vs.
1.
The Additional Chief Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai - 600 009 2.
The District Collector and District Magistrate Kallakurichi District Kallakurichi 3.
The Superintendent of Police Kallakurichi District 4.
The Superintendent Central Prison, Cuddalore 5.
The Inspector of Police Chinnasalem Police Station Kallkurichi District ... Respondents Page Nos.1/18
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records relating to the detention order passed by the second respondent pertaining to the order in D.O.No.C2/53/2022 dated 15.09.2022 detaining the detenu under 2(f) of Tamil Nadu Act 14 of 1982 as a Goonda and quash the same and directthe respondents to produce the detenu Sharfudheen, son of Anwar Basha, aged about 38 years, who is detained at Central Prison, Cuddalore before this Court and set him at liberty.
For Petitioner :
Mr.S.Senthilvel for Mr.G.Nirmal Krishnan For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor Assisted by Mr.Sylvester John Advocate
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by wife of detenu assailing a 'preventive detention order dated 15.09.2022 bearing reference D.O.No.C2/53/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fifth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
Page Nos.2/18
2. Impugned detention order has been made under 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sandoffenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982. 3.There is no adverse case. The solitary case which is the sole substratum of the impugned detention order is Crime No.236 of 2022 on the file of Chinnasalem Police Station for an alleged offence under Sections147, 148, 294(b), 323, 324, 332, 336, 353, 435, 436, 379 and 506(ii) of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] read with Sections 3, 4 and 5 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
`
4. Mr. S.Senthilvel, learned counsel representing the counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Page Nos.3/18
Prosecutor, assisted by Mr.Sylvester John, Advocate, for all respondents are before us.
5. To be noted, though several grounds have been raised/urged in the support affidavit qua captioned HCP, in the hearing Mr.S.Senthilvel, learned counsel who is before us on behalf of counsel on record for petitioner posited/predicated his campaign against the impugned detention order on two points and they are as follows:
i) The first point is regarding Tamil translation of the bail order in similar case has not been provided and the literacy level of the detenu is low. In this regard, learned counsel submitted that the case of a co-accused was allowed on the same point vide order dated 29.03.2023 in H.C.P.No.1921 of 2022.
ii) The second point turns on delay in considering the representation made qua impugned detention order.
6. As regards the first point we deem it appropriate to say that the case of the co-detenu being allowed vide H.C.P.No.1921 of 2022 in and by order dated 29.03.2023 has been reported in 2023:MHC:1566 and the same reads as follows:
Page Nos.4/18
Page Nos.5/18
Page Nos.6/18
Page Nos.7/18
Page Nos.8/18
Page Nos.9/18
Page Nos.10/18
Page Nos.11/18
Page Nos.12/18
Page Nos.13/18
The point being common, the above order will enure to the benefit of the petitioner in the case on hand also.
7. However, we deem it appropriate to consider the second point also. As regards the second point, the undisputed dates and events which is placed before us is as follows:
'Representation dated ..
10.10.2022 Representation received dated ..
12.10.2022 File submitted on dated ..
27.10.2022 Under Secretary dealt with on ..
27.10.2022 Deputy Secretary dealt with on ..
27.10.2022 Minister dealt with on ..
01.11.2022 Rejected letter prepared on ..
01.11.2022 Rejection letter sent to the detenu on ..
02.11.2022 Govt. Holidays falls on:
15.10.2022, 16.10.2022, 22.10.2022, 23.10.2022, 24.10.2022, 29.10.2022, 30.10.2022 S.No.
Representation Column 6 to 7 Column 9 to 10 1.
No. of days 2.
No. of holidays No. of delay days Total 11 days delay Page Nos.14/18
8.We find that even if the intervening 7 public/Government holidays 15.10.2022, 16.10.2022, 22.10.2022, 23.10.2022, 24.10.2022, 29.10.2022, 30.10.2022 are excluded, there is a delay of 11 days in considering the representation. We make it clear that the delay in considering the representation point in challenges to preventive detention orders cannot be decided quantitatively. It has to be decided qualitatively based on the facts, circumstances and the trajectory the representation has taken, in other words, it has to be decided on case to case basis. In the case on hand, we adopt such an approach and we find that 11 days delay vitiates the impugned detention order. We also hasten to make it clear that there can be no straight jacket formula in terms of number of days as regards this point is concerned and therefore, this order will not serve as precedent in all and every case.
9. Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 15.09.2022 bearing reference D.O.No.C2/53/2022 made by the second respondent is set aside and the detenu Thiru.Sharfudheen, aged 38 years, son of Thiru.Anwar Basha is directed to Page Nos.15/18
be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (M.N.K.,J.) 05.04.2023 Index : Yes Speaking gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Cuddalore.
Page Nos.16/18
To 1.
The Additional Chief Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai - 600 009 2.
The District Collector and District Magistrate Kallakurichi District Kallakurichi 3.
The Superintendent of Police Kallakurichi District 4.
The Superintendent Central Prison, Cuddalore 5.
The Inspector of Police Chinnasalem Police Station Kallkurichi District 6.
The Public Prosecutor Madras High Court, Chennai Page Nos.17/18
M.SUNDAR, J., and M.NIRMAL KUMAR, J., gpa 05.04.2023 Page Nos.18/18