Jabamalai v. The Additional Chief Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN and THE HONOURABLE MRS.JUSTICE J.NISHA BANU Jabamalai ... Petitioner/Sister of the detenu -vs1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Fort St.George, Chennai-600 009.
2.The District Magistrate and District Collector, Office of the District Collector, Thoothukudi District..
3.The Superintendent of Prison, Palayamkottai Central Prison, Palayamkottai District. ... Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus, calling for the entire records, connected with the detention order of the respondent No.2 in No.H.S.(M).Confdl.No.105/2020, dated 12.11.2020 and quash the same and direct the respondents to produce the detenu by name Edison, son of Sessaiah, aged about 35 years, now detained in Palayamkottai Central Prison before this court and set him at liberty.
For Petitioner : Mr.S.Malaikani For Respondents : Mr.S.Ravi Additional Public Prosecutor
O R D E R
(Order of the Court was made by J.NISHA BANU, J.) This habeas corpus petition has been filed by the sister of the detenu, namely Edison, aged about 35 years, challenging the detention order in H.S.(M).Confdl.No.105/2020, dated 12.11.2020, passed by the second respondent, branding him as "Sexual Offender" as contemplated under Section 2(ggg) of Tamil Nadu Act 14 of 1982. 2.Mr.S.Malaikani, learned counsel appearing for the petitioner, would argue that the detenu voluntarily surrendered on 14.10.2020, 1/4
but the Detaining Authority has passed the detention order against him on 12.11.2020. According to the learned counsel, there is no live link between the date of alleged occurrence and the date of detention. The Detaining Authority, to arrive at the subjective satisfaction, relied upon the similar case bail order. It is the submission of the learned counsel for the petitioner that when no bail petition has been filed by the detenu, the subjective satisfaction reached by the Detaining Authority is without any basis and there is no imminent possibility of the detenu coming out on bail by filing bail petition before the appropriate Court. 3.Mr.S.
Ravi, learned Additional Public Prosecutor appearing for the State, on instructions, submitted that after satisfying with the materials placed by the Sponsoring Authority, the Detaining Authority has passed the detention order and there is no illegality or infirmity in the detention order. It is also stated that even if there is any delay in disposal of the representation, it has not caused any prejudice to the rights of the detenu and hence, prayed for dismissal of the habeas corpus petition.
4.Heard the learned counsel appearing on either side and perused the materials available on record.
5.Even though the learned counsel for the petitioner has raised several grounds, he has confined his arguments only to the delay in disposal of the petitioner's representation. It is submitted by the learned counsel for the petitioner that the procedural safeguards guaranteed under Articles 21 and 22 of the Constitution of India have not been followed in this case and there is unexplained and inordinate delay in disposal of the petitioner's representation, which would vitiate the impugned order of detention. 6.In the instant case, the proforma furnished by the learned Additional Public Prosecutor would indicate that as against the impugned detention order, the petitioner made a representation to the first respondent on 07.01.2021 and it was received on 12.01.2021. Remarks were called for on the same day ie., on 12.01.
2021 and it was received on 20.01.2021. The Deputy Secretary dealt with the matter on 21.01.2021. The concerned Minister dealt with the matter on 04.02.2021 and the representation came to be rejected on 04.02.2021. It is seen that in between 21.01.2021 and 04.02.2021, there was a delay of 11 days, after excluding the Government Holidays of 2 days, in considering the petitioner's representation.
7.At this juncture, it is useful to refer the decision of the Honourable Apex Court in the case of Rajammal vs. State of Tamil Nadu and another, reported in 1999 (1) SCC 417, wherein the Apex Court has observed and held that it is for the Authority concerned to explain the delay, if any, in disposal of the representation and 2/4
if any delay was caused on account of nay indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner.
8.In the case on hand, as stated supra, the delay of 11 days in considering the representation of the petitioner has not been properly explained by the respondents. Hence, in our considered view, the detention order is liable to be set aside solely on the ground of delay by following the decision of the Honourable Apex Court referred supra.
9.In fine, the Habeas Corpus Petition is allowed. The detention order in H.S.(M).Confdl. No.105/2020, dated 12.11.2020, passed by the second respondent, is set aside. Consequently, the detenu, namely, Edison, aged about 35 years, who is now detained at Central Prison, Palayamkottai is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case.
Sd/- Assistant Registrar (CS I) // True Copy // / /2021 Sub Assistant Registrar(CS) akv Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Fort St.George, Chennai-600 009.
2.The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai-9.
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3.The District Magistrate and District Collector, Office of the District Collector, Thoothukudi District..
4.The Superintendent of Prison, Palayamkottai Central Prison, Palayamkottai District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
ORDER MADE IN DATED : 27.09.2021 DJ(CO)/RS (20.10.2021) 4P 6C 4/4