Jayanthi v. The State Rep By

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.2461 of 2018 Jeyanthi ... Petitioner/Mother of the detenu .. Vs ..

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

2.

The District Collector & District Magistrate, Kancheepuram District, Kancheepuram.

3.

The Inspector of Police (Law & Order), Chengalpattu Taluk Police Station, Kancheepuram District. ...Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the detention order passed by the the second respondent pertaining to the order made in B.C.D.F.G.I.S.S.S.V. No.72/2018, dated 21.09.2018 in detaining the detenu under Section 3(1) of Tamil Nadu Act 14 of 1982, as a Goonda and quash the same and direct the respondents to produce the detenu who is Subash, S/o.Kuppusamy, Male aged about 22 years old, who is detained at Central Prison, Puzhal, before this Court and set him at liberty.

For Petitioner :

Mr.A.Murugavel For Respondents:

Mr.R.Prathap Kumar Additional Public Prosecutor

ORDER

[Order of the Court was made by C.T.SELVAM, J.] The petitioner is the mother of the detenu herein, viz.,

Subash, Male, aged about 22 years Son of Kuppusamy. The detenu has been detained by the second respondent by his order in B.C.D.F.G.I.S.S.S.V. No.72/2018, dated 21.09.2018 holding him to be a "Sand Offender", as contemplated under Section 2(gg) of 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). The said order is under challenge in this Habeas Corpus Petition.

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

Police Station & Crime No.

Section of Law 1.

Chengalpattu Taluk Police Station Crime No.341/2018 430 and 379 IPC r/w.

3(i) of Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992 The ground case has been registered against the detenu in Cr.No.503/2018 on the file of the Chengalpattu Taluk Police Station, for offences under Sections 294(b), 353, 307, 506 (ii) IPC and 430, 379 IPC r/w. 3(i) of Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992 r/w. 21(i) of Mines & Minerals Act.

3. We have heard learned counsel for petitioner and learned Additional Public Prosecutor appearing for respondents. We have also perused the records produced by the Detaining Authority.

4. Though several grounds have been raised in the Habeas Corpus Petition, learned counsel for petitioner would mainly focus his argument 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 by the petitioner was not considered on time and there was an inordinate and unexplained delay. In support of his contention, learned counsel for petitioner relied on the judgment of the Hon'ble Apex Court in the case of Rajammal vs. State of Tamil Nadu, [(1999) 1 SCC 417].

5. The learned Additional Public Prosecutor opposed the Habeas Corpus Petition. 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.

6. The Detention Order in question was passed on 21.09.2018. The petitioner made a representation, dated 13.10.2018 and the same was received on 16.10.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on 16.10.2018. The remarks were duly received on 23.10.2018. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 07.11.2018 and served on the detenu on 07.11.2018.

7. It is the contention of the petitioner that there was an inordinate delay of 6 days in submitting the remarks by the Detaining Authority, of which 4 days were Saturdays, Sundays and Government Holidays and hence there was a delay of 2 days in submitting the remarks. Thereafter, there was yet another delay of 10 days in considering the representation, of which 2 days were Saturdays, Sundays and Government Holidays and hence there was yet another delay of 8 days in considering representation.

8. In Rekha vs. State of Tamil Nadu, reported in 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.

9. In Sumaiya vs. The Secretary to Government, reported in 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.

10. 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.

11. In the subject case, admittedly, there is an inordinate and unexplained delay of 2 days in submitting the remarks by the Detaining Authority and 8 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

12. In the result, the Habeas Corpus Petition is allowed and the order of detention in B.C.D.F.G.I.S.S.S.V. No.72/2018, dated 21.09.2018, passed by the second respondent is set aside. The detenu, namely Subash, Male, aged about 22 years Son of

Kuppusamy, 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, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.

The District Collector & District Magistrate, Kancheepuram District, Kancheepuram.

3.

The Inspector of Police (Law & Order), Chengalpattu Taluk Police Station, Kancheepuram District.

4.The Superintendent, Central Prison, Puzhal, Chennai.

5.The Public Prosecutor, High Court, Madras.

H.C.P.No.2461 of 2018 GN(23/01/2019)