Shanthi v. The State Of Tamil Nadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Shanthi .. Petitioner Vs 1.State of Tamil Nadu represented by its Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Kallakurichi District, Kallakurichi.
3.The Superintendent of Police, O/o.Superintendent of Police, Kallakurichi District.
4.The Superintendent of Prison, Central Prison, Cuddalore.
5.State rep. By The Inspector of Police, PEW Kallakurichi Police Station, Kallakurichi District.
.. Respondents Petition filed under Article 226 of the Constitution of India Page Nos.1/8
praying for issuance of a writ of habeas corpus to call for the entire records relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order dated 18.11.2022 on the file of second respondent herein and made in proceedings D.O.No.C2/66/2022 and quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son namely Santhoshkumar, son of Murali, aged about 25 years before this Court and set the petitioner's son at liberty from detention, now the petitioner's son detained in Central Prison, Cuddalore. For Petitioner :
Mr.R.Sasikumar For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by mother of the detenu assailing a 'preventive detention order dated 18.11.2022 bearing reference D.O.No.C2/66/2022' [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.2/8
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, Sand-offenders, 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 'Bootlegger' within the meaning of Section 2(b) of Act 14 of 1982.
3. There are two adverse cases. The ground case which is the sole substratum of the impugned detention order is Crime No.303 of 2022 on the file of Kallakurichi Prohibition Enforcement Wing for alleged offences under Sections 4(1)(aaa) and 4(1-A) of Tamil Nadu Prohibition Act, 1937 subsequently altered into one under Sections 4(1)(aaa), 4(1-A) and 4(1)(g) of Tamil Nadu Prohibition Act, 1937. 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.
Page Nos.3/8
4. Mr.R.Sasikumar, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor assisted by Mr.M.Sylvester John, learned counsel, for all respondents are before us.
5. Though several grounds have been urged in the support affidavit, learned counsel for petitioner at the hearing exhorted one point in his campaign against the impugned detention order and that one point turns on delay in considering a representation sent qua impugned detention order.
6.
Responding to the submission, learned State Additional Public Prosecutor submitted to the contrary and placed before us the list of dates and the details are as follows: 'Representation dated ..
29.11.2022 Representation received dated ..
01.12.2022 File submitted on dated ..
20.12.2022 Under Secretary dealt with on ..
20.12.2022 Deputy Secretary dealt with on ..
20.12.2022 Minister dealt with and file Page Nos.4/8
received on ..
20.12.2022 Rejection letter prepared on ..
22.12.2022 Rejection letter sent to the detenu on ..
23.12.2022 Govt. Holidays fall on:
03.12.2022, 04.12.2022, 10.12.2022, 11.12.2022, 17.12.2022 and 18.12.2022'
7.
A careful perusal of the list of dates brings to light that there is fourteen days delay in considering the representation. As regards making an effective representation against a preventive detention order, the same is a constitutional safeguard ingrained in Clause 5 of Article 22 of the Constitution of India. If this constitutional safeguard is hampered, it vitiates the impugned detention order. We also hasten to make it clear that there cannot be any straight jacket formula with regard to number of days within which a representation has to be disposed of. Delay in considering the representation point has to be dealt with on case to case basis. Considering the facts and circumstances of the case and the nature of the matter, we find that this delay has caused infraction of the detenu's rights qua the preventive detention order. We find that the delay of fourteen days excluding six public/Government holidays is not justified and the point Page Nos.5/8
urged by the petitioner enures to the benefit of the petitioner.
8. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 18.11.2022 bearing reference D.O.No.C2/66/2022 made by the second respondent is set aside and the detenu Thiru.Santhoshkumar, aged 25 years, S/o.Thiru.Murali, is directed to 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.) 20.04.2023 Index : Yes / No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Cuddalore.
To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Kallakurichi District, Kallakurichi.
3.The Superintendent of Police, O/o. Superintendent of Police, Kallakurichi District.
Page Nos.6/8
4.The Superintendent of Prison, Central Prison, Cuddalore.
5.The Inspector of Police, PEW Kallakurichi Police Station, Kallakurichi District.
6.The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and M.NIRMAL KUMAR , J., mmi 20.04.2023 Page Nos.8/8