Indira v. The Additional Chief Secretary To Government Home

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.01.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S.RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Indira W/o.Santhanam ... Petitioner Vs.

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

2.The Commissioner of Police, Greater Chennai.

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

4.The Inspector of Police, Law and Order, J-6, Thiruvanmiyur Police Station, Chennai.

... Respondents

Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the 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 made in BCDFGISSSV No.406/2023 dated 19.09.2023 in detain the detenue under 2(f) of Tamil Nadu Act 14 of 1982, as a Goonda and quash the same and direct the respondent to produce the detenue Selvakumar, S/o.Ramachandran, aged about 25 years, who is detained at Central Prison, Puzhal, before this Court and set him at liberty. For Petitioner :

Mr.G.Nirmal Krishnan For Respondents :

Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.C.Aravind

O R D E R

(Order of the Court was made by M.S.RAMESH, J.) The Petitioner, aunt of the detenu, Selvakumar, aged 25 years S/o.Ramachandran, has filed this Petition challenging the order of detention passed by the 2nd respondent against the detenu, in BCDFGISSSV No.406/2023, dated 19.09.2023, branding the detenu as a "Goonda" under the Tamil Nadu Act 14 of 1982.

2. Even though the learned counsel for the petitioner raised many grounds in assailing the impugned order of detention in the petition, he confined his arguments only to the ground of delay in considering the representation of the detenu, dated 29.11.2023. According to the learned counsel for the petitioner, though the representation dated 29.11.2023, was received by the Government on 01.12.2023; and though the file has been dealt with by the Deputy Secretary on 01.12.2023, the Minister concerned dealt with the file only on 07.12.2023 and the Rejection Letter prepared on 07.12.2023 was sent to the detenu on the same day. It is the further submission of the learned counsel that this inordinate delay in considering the representation remains unexplained and the same vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Rajammal vs. State of Tamil Nadu, reported in (1999) 1 SCC 417. 3.Heard the learned Additional Public Prosecutor appearing for the respondents.

4. As per the submission of the learned counsel for the petitioner and on perusal of the records, we find that, the representation of the detenu, dated 29.11.2023, which was received by the Government on 01.12.2023, was dealt with by the Minister concerned only on 07.12.2023 and the Rejection Letter was prepared on 07.12.2023. Thus, we find there is a considerable delay of three days [after excluding the intervening Saturday and Sunday [02.12.2023 and 03.12.2023] in considering the representation of the petitioner. This inordinate delay in considering the detenu's representation remain unexplained.

5. It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the inordinate delay. Therefore, we have to hold that the delay has vitiated further detention of the detenu.

6. 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."

7. As per the dictum laid down by the 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. But, here the inordinate delay from 01.12.2023 to 07.12.2023, has not been properly explained at all.

8. Further, in a recent decision in Ummu Sabeena vs. State of Kerala - 2011 STPL (Web) 999 SC, the Hon'ble Supreme 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.

9. 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.

10. Accordingly, the habeas corpus petition is allowed and the detention order in BCDFGISSSV No.406/2023, dated 19.09.2023, passed by the 2nd respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case. [M.S.R., J] [S.M., J] 23.01.2024 pvs

Internet : Yes Index : Yes / No

To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

2.The Commissioner of Police, Greater Chennai.

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

4.The Inspector of Police, Law and Order, J-6, Thiruvanmiyur Police Station, Chennai.

5.The Public Prosecutor, High Court, Madras.

M.S.RAMESH , J.

and SUNDER MOHAN, J.

pvs 23.01.2024