Amutha v. The Secretary To The Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26.02.2020

CORAM

THE HONOURABLE MR.JUSTICE R.SUBBIAH and THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN H.C.P.No.2278 of 2019 Amutha W/o.Ravi

...Petitioner

versus

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

2. The Commissioner of Police, Greater Chennai, Chennai.

...Respondents

Prayer: Petition filed under Article 226 of the Constitution of India, seeking to issue a Writ of Habeas Corpus, calling for the entire records connected with the order of the second respondent herein in Memo No.654/BCDFGISSSV/2019 dated 09.10.2019 passed against the petitioner's husband the detenu, namely, Ravi, Son of Azhagar, aged about 44 years, who is confined at Central Prison, Puzhal, Chennai-66 and set aside the same, consequently, directing the respondents herein to produce the body and person of the detenu, before this Court and set him at liberty. For Petitioner : Mr.A.Murugavel For Respondents: Mr.R.Prathap Kumar Additional Public Prosecutor

O R D E R

[Order of this Court was made by R.SUBBIAH,J.] The petitioner herein is the wife of the detenu, namely, Ravi, Son of Azhagar, aged about 44 years, has filed this petition, challenging the order of detention passed by the second respondent in Memo No.654/BCDFGISSSV/2019 dated 09.10.2019, branding him as a "Bootlegger" under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].

2. The alleged ground case has been registered against the detenu in Crime No.287 of 2019 on the file of M2 Madhavaram Milk Colony Police Station for offences under Sections 341, 294 (b), 336, 427, 392, 397 and 506(ii) of IPC. Aggrieved by the order of detention, the present Habeas Corpus Petition has been filed.

3. Heard learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for respondents. Perused the materials on record.

4. Though several grounds have been raised in the Habeas Corpus 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. 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. In support of his contention, learned counsel appearing for the petitioner relied on the judgment of the Hon'ble Apex Court in RAJAMMAL vs. STATE OF TAMIL NADU reported in (1999) 1 SCC 417.

5. Learned Additional Public Prosecutor appearing for respondents would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to 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.

6. The Detention Order in question was passed on 09.10.2019. The petitioner submitted the representation dated 15.10.2019 and the same was received on 05.11.2019. Thereafter,

remarks were called for by the Government from the Detaining Authority on 05.11.2019. The remarks were duly received on 12.11.2019, after a delay of 4 days. He adds that though the file was dealt with by the Deputy Secretary on 13.11.2019, the said file was dealt with by the Minister concerned only on 27.11.2019, with a further delay of 9 days. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 29.11.2019.

7. It is the contention of the petitioner that there was an inordinate delay of 4 days, in submitting the remarks by the Detaining Authority. Thereafter, there was yet another delay of 9 days, of which 6 were Government holidays and hence, there was 13 days delay in considering the representation.

8. In the judgment of the Hon'ble Supreme Court in RAJAMMAL's case (cited supra), it has been held as follows: "It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest."

9. As per the dictum laid down by the Hon'ble Supreme Court in above cited RAJAMMAL's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. Here, 13 days delay has not been properly explained at all.

10. Further, in a recent decision in UMMU SABEENA vs. STATE OF KERALA reported in 2011 STPL (Web) 999 SC, in which, the Hon'ble Apex Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

11. In the light of the above fact and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the detenu.

12. Accordingly, the Habeas Corpus Petition is allowed and the detention order passed by the second respondent against the detenu, namely, Ravi, Son of Azhagar, aged about 44 years, in Memo No.654/BCDFGISSSV/2019 dated 09.10.2019, is quashed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. -s/d- Assistant Registrar True Copy Sub-Assistant Registrar To

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

2. The Commissioner of Police, Greater Chennai, Chennai.

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

4.The Joint Secretary to Government Public (law and order) Fort. St. George Chennai 9.

5. The Public Prosecutor, High Court, Madras.

H.C.P.No.2278 of 2019 GMR(CO) SP(17/07/2020)