V.Sathish v. The District Collector And

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.04.2018

CORAM:

THE HONOURABLE MR.JUSTICE C.T.SELVAM AND THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED H.C.P(MD)No.14 of 2018 V.Sathish : Petitioner Vs.

1. The State, represented by The District Collector and District Magistrate, Tirunelveli District, Tirunelveli 9.

2. The Principal Secretary to Government, Home, Prohibition and Excise Department [XIV], Fort.St.George, Secretariat, Chennai - 600 009.

3. State, rep by, The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

: Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the records from the first respondent in M.H.S.Confdl.No.130/2017, dated 12.12.2017, by setting aside the said order of detention passed by the first respondent and setting the detenu - Velladurai, S/o.Shanmugaiah Servai alias Thondan, at liberty, now detained in the Central Prison, Palayamkottai. For Petitioner : Mr.K.Prabhu For Respondents : Mr.V.Neelakandan Additional Public Prosecutor.

O R D E R

*********** [Order of the Court was made by C.T.SELVAM, J.] The petitioner is the son of the detenu - Velladurai, S/o.Shanmugaiah Servai alias Thondan. The detenu has been detained by the first respondent by his order in M.H.S.Confdl.No.130/2017, dated 12.12.2017, holding him to be a "Goonda", as contemplated under Section 2(f) 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 12.12.2017. The petitioner made a representation dated 26.12.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 28.12.2017. The remarks were duly received on 05.01.2018. Thereafter, the Government considered the matter and passed the order rejecting the representation on 12.01.2018.

6. It is the contention of the petitioner that there was a delay of five days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of four 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 of five days in submitting the remarks by the Detaining Authority and four days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Detention Order, passed by the first respondent, in his proceedings in M.H.S.Confdl.No.130/2017, dated 12.12.2017, is quashed. The detenu, namely, Velladurai, S/o.Shanmugaiah Servai alias Thondan, 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(CS-III) /True Copy/ Sub Assistant Registrar To

1. The District Collector and District Magistrate, Tirunelveli District, Tirunelveli 9.

2. The Principal Secretary to Government, Home, Prohibition and Excise Department [XIV], Fort.St.George, Secretariat, Chennai - 600 009.

3. The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

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.

NB VB/RSK/SAR4/28/04/2018/3P/6C ORDER MADE IN H.C.P(MD)No.14 of 2018 Dated:03.04.2018