Govindhammal v. Secretary To Govt Home Prohibition And Excise Dept Ch

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.12.2018

CORAM:

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MRS.JUSTICE R.HEMALATHA H.C.P. No.2331 of 2018 Govindhammal ... Petitioner .. Vs ..

1.The State of Tamilnadu, Rep. by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.

2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 7.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, call for the entire records leading to the detention of the petitioner's son Raja @ Amlet Raja, Son of Selvaraj, male Aged about 26 years is presently lodged in Central Prison, Puzhal at Chennai, and has been detained under Act 14 of 82 as "Sexual Offender" vide detention order dated 25.09.2018 on the file of the second respondent herein, made in Memo No.886/BCDFGISSSV/2018 and quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Puzhal, Chennai.

For Petitioner :

Mr.M.Rajavelu For Respondents:

Mr.R.Prathap Kumar Additional Public Prosecutor - - - - -

ORDER

[Order of the Court was made by C.T.SELVAM, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in Memo No.886/BCDFGISSSV/2018, dated 25.09.2018, whereby the detenu, by

name, Raja @ Amlet Raja, aged about 26 years, son of Selvaraj, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Sexual Offender".

2. The detenu has come to adverse notice in the following case:- S.No.

Police Station & Crime No.

Section of Law 1.

K-6 T.P.Chatram Police Station Cr.No.166/2017 147, 148, 449, 452, 506(ii), 307, 302 r/w. 120(B) IPC The ground case has been registered against the detenu in Cr.No.3/2018 on the file of W-4 All Women Police Station, Kilpauk, for an offence u/s 10 of Protection of Children from Sexual Offences Act 2012 and Section 506(ii) IPC. The detention order has been passed by Second respondent in Memo No.886/BCDFGISSSV/2018.

3. Though many grounds have been raised in the petition, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.

4. Learned counsel appearing for the petitioner submitted that the detenu was arrested in the ground case in Cr.No.3/2018 on 23.08.2018; whereas the detention order was passed on 25.09.2018, i.e. Nearly after a lapse of 32 days. This inordinate delay in passing of detention order would vitiate the same. In support of his contention, learned counsel for the petitioner placed reliance on the judgment of a Division Bench of this Court reported in 2005 MLJ (Crl.) 752 (Ramesh v. District Collector and District Magistrate, Tiruchirapalli District and another).

5. Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.

6. We have heard the learned counsel for both sides with regard to the facts.

7. A perusal of the grounds of detention as well as the detention order passed by the detaining authority would show

that the Detention Order was passed on 25.09.2018. Further, the detenu was arrested in the ground case as early as on 23.08.2018. This shows an inordinate delay of nearly 32 days in passing the detention order. There is no explanation forthcoming on the side of the respondents for this inordinate delay in passing the detention order. Learned counsel for the petitioner has rightly placed reliance on the decision in Ramesh's case (cited supra) wherein, this Court has held as follows:

"....

3.It is brought to our notice by the learned Government advocate that the analyst report was received on 06.12.2014 and the doctor has issued certificate on 07.12.2014. Even in the counter affidavit filed by the first respondent, it is stated that the sponsoring authority has submitted his affidavit only on 15.01.2015. When the sponsoring authority is in possession of the analyst report and the doctor's report even on 06.12.2014 and 07.12.2014, there is no proper explanation for submitting his affidavit till 15.01.2015 for invoking the provisions of Tamil Nadu Act 14 of 1982. Even thereafter, the impugned detention order was passed only on 27.02.2015, i.e. After five weeks of receipt of the affidavit from the sponsoring authority. Though the detaining authority has filed a counter affidavit, there is no explanation for the undue delay in passing the impugned order.

4.In this regard, learned counsel for the petitioner relied on unreported decision of this Court rendered in H.C.P. No.1149 of 1995, dated 13.12.1995. In similar circumstances, after pointing out the unexplained delay between the date of submission of the affidavit by the sponsoring authority and the detention order, the Division Bench of this Court has concluded thus:

"Such delays tend to have an affect of snapping the link between prejudicial activity and passing of preventive orders......."

8. In view of the above decision rendered by the Division Bench of this Court, this Court is of the view that the detention order is unsustainable in law on the ground of inordinate and unexplained delay in passing the detention order and the same is liable to be set aside.

9. In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No.886/BCDFGISSSV/2018, dated 25.09.2018 passed by the second respondent is set aside. The

detenu, namely Raja @ Amlet Raja, aged about 26 years, son of Selvaraj, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Deputy Registrar //True Copy// Sub Assistant Registrar Jrl To:

1.The Secretary to Government, The State of Tamilnadu, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.

2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 7.

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

4.The Public Prosecutor, High Court, Madras.

H.C.P.No.2331 of 2018 rrs 24/01/2019