Kaliswari v. The Principal Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.04.2018

CORAM:

THE HONOURABLE Mr. JUSTICE C.T.SELVAM and THE HONOURABLE Mr. JUSTICE A.M.BASHEER AHAMED H.C.P.(MD)No.137 of 2018 Kaliswari ... Petitioner/Wife of detenu Vs.

1. The Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9.

2. The District Magistrate and District Collector, Virudhunagar District, Virudhunagar.

3. The Superintendent of Prison, Central Prison, Madurai.

... Respondents PRAYER: The petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the records pertaining to the impugned detention order passed by the second respondent made in his proceedings in Cr.M.P.No.01/2018 (Sand Offender), dated 24.01.2018 in detaining the detenue under Section 2 (gg) of the Tamilnadu Act 14 of 1982 as a Sand Offender and quash the same and direct the respondents to produce the Detenue namely, Shanmugavel, S/o. Kandappan, Male, aged about 44 years, who is detained in Central Prison, Madurai, before this Court and set him at liberty.

For Petitioner : Mr.C.Jegannathan For Respondents : Mr.V.Neelakandan, Additional Public Prosecutor.

ORDER

(Order of the Court was made by C.T.SELVAM,J.) The petitioner is the wife of the detenu viz., Shanmugavel, son of Kandappan, aged 44 years. The detenu has been detained by order in Cr.M.P.No.01/2018(Sand Offender), dated 24.01.2018, holding him to be a "Sand Offender", as contemplated under 2(gg) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

2.We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. We have also perused the records produced by the Detaining Authority. 3.Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the 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. 4.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.

5.The Detention Order in question was passed on 24.01.2018. The petitioner made a representation dated 29.01.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on 05.02.2018. The remarks were duly received on 18.02.2018. Thereafter, the Government considered the matter and passed the order rejecting the representation on 09.03.2018. 6.It is the contention of the petitioner that there was a delay of nine days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of fifteen days in considering the representation.

7.In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble 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.

8. In Sumaiya Vs. The Secretary to Government, [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.

9. In Tara Chand Vs. State of Rajasthan and others, [1980

(2) SCC 321], the Hon'ble 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.

10. In the subject case, admittedly, there is an inordinate and unexplained delay in submitting the remarks by the Detaining

Authority in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Detention Order, passed by the second respondent, in his proceedings in Cr.M.P.No.01/2018(Sand Offender), dated 24.01.2018, is quashed. The detenu, namely, Shanmugavel, son of Kandappan, is ordered to be set at liberty forthwith, if his detention is not required in connection with any other case.

12. In the upshot, we allow the Habeas Corpus Petition. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To

1. The Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9.

2. The District Magistrate and District Collector, Virudhunagar District, Virudhunagar.

3. The Superintendent of Prison, Central Prison, Madurai.

4. The joint Secretary to Government, Public (Law & order), Fort St.George, Chennai - 9.

5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Cp/nbj AE/SKN RSK/SAR2/25.04.2018/3P/6C H.C.P.(MD)No.137 of 2018 04.04.2018