Chellammal v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.06.2022

CORAM

THE HONOURABLE MR.JUSTICE PARESH UPADHYAY AND THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA H.C.P.NO.2137 OF 2021 Chellammal ... Petitioner .Vs

1. The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police, Greater Chennai.

3. The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.

4. The Inspector of Police, Team 25, Anti Land Grabbing Special Cell-II, Central Crime Branch, Chennai.

... Respondents PRAYER:- Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus call for the records in connection with the order of detention passed by the second respondent dated 01.12.2021 in Memo No.368/BCDFGISSSV/2021 against the petitioner's son Justin John, male, aged 42 years, S/o.John, who is confined at the Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner :

Mr.V.Kannadasan For Respondents :

Mr.M.Babu Muthumeeran Additional Public Prosecutor

ORDER

(Order of the Court was made by A.D.JAGADISH CHANDIRA, J.) The petitioner is the mother of the detenu Justin John, male, aged 42 years, S/o.John. The detenu has been detained by the second respondent by his order in No.368/BCDFGISSSV/2021 dated 01.12.2021, 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 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 on behalf of the petitioner was not considered in 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 01.12.2021. A representation was made on behalf of the petitioner on 01.02.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 03.02.2022. The remarks were duly received on 03.03.2022. Thereafter, the Government considered the matter and passed the order rejecting the representation on 18.04.2022.

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, 8 days were Government Holidays and hence there was an inordinate delay of 20 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 03.03.2022 and there was a delay of 46 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, 17 days were Government Holidays, hence, there was an inordinate delay of 29 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 20 days in submitting the remarks by the Detaining Authority and unexplained delay of 29 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.368/BCDFGISSSV/2021 dated 01.12.2021, passed by the second respondent is set aside. The detenu, viz., Justin John, male, aged 42 years, S/o.John, 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/29

To 1.

The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.

The Commissioner of Police, Greater Chennai.

3.

The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.

4.

The Inspector of Police, Team 25, Anti Land Grabbing Special Cell-II, Central Crime Branch, 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.2137 OF 2021 KV(CO) PBS/29/06/2022