Backiyaselvi v. The Additional Chief Secretary To Government Of Tamilnadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :16.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN and THE HONOURABLE MRS.JUSTICE J.NISHA BANU H.C.P.(MD) No.331 of 2021 Backiyaselvi ... Petitioner/Wife of the Detenue -vs1.The Additional Chief Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The District Collector cum District Magistrate, Tirunelveli, Tirunelveli District.
3. The Superintendent of Prison, Central Prison, Palayamkottai Tirunelveli 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 records pertaining to the detention order in M.H.S.Confdl No.03/2021 dated 12.01.2021 passed by the second respondent and setaside the same by setting the detenue by name Ram @ Ramamoorthy, S/o Sakthivel, aged about 24 years at his liberty, now detain at Central Prison, Palayamkottai, Tirunelveli.
For Petitioner : Mr.K.Sivabalan For Respondents : Mr.S.Ravi Standing counsel for the State
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 wife of the detenu, namely, Ram @ Ramamoorthy, S/o.Sakthivel, aged about 24 years, challenging the detention order in M.H.S.Confdl No.03/2021 dated 12.01.2021, passed by the second respondent, branding him as "Goonda", as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982.
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2. The learned counsel for the petitioner would state that when the offences and circumstances of the similar case referred to by the detaining authority in the grounds of detention is, not similar, the detaining authority ought not to have stated that there is a possibility of the detenu coming out on bail. He would further state that Tamil version of relied documents were not supplied to the detenue and therefore, the detenu could not make effective representation. The place of arrest of the detenu differs in the arrest memo and confession statement and the arrest was not intimated to the friends or relatives of the detenu. It is also stated that while the detenu was arrested on 27.12.2020 in the ground case, detention order was passed on 12.01.
2021 with the delay of 55 days and further, certain important documents with regard to ground case and adverse case were not furnished. 3.Even though the petitioner has raised the above grounds to quash the impugned detention order, the learned counsel for the petitioner would mainly place arguments on the ground of delay in disposal of the petitioner's representation. In this regard, the learned counsel for the petitioner would state 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. Thus, he would pray to quash the impugned order of detention. 4.
The learned Standing Counsel appearing for the respondents would state that after satisfying with the materials placed by the sponsoring authority, the detaining authority has passed the impugned detention order and therefore, there is no infirmity or illegality in the same. He would produce the proforma regarding the disposal of the petitioner's representation and would state that even if there is any delay in disposal of the petitioner's representation, it has not caused any prejudice to the rights of the detenu. Thus, he would pray for dismissal of this petition. 5.Heard the learned counsel for the petitioner as well as the respondents.
6.Perusal of the proforma produced by the learned Standing Counsel appearing for the State would show that as against the impugned detention order, the petitioner has made a representation to the 1st respondent on 22.01.2021 which was received on 15.02.2021. Remarks on the said representation were called for on 15.02.2021 and it was received on 15.02.2021. The Deputy Secretary concerned has dealt with the representation on 15.02.2021 and the Hon'ble Minister concerned has dealt with the representation on 12.04.2021 and finally, the representation came to be rejected on 15.04.2021. It is seen that in between 15.02.2021 and 12.04.2021, there was a delay of 55 days and after excluding 20 days Government Holidays, there was a delay of 35 days in considering the petitioner's 2/4
consideration.
7.At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court in the case of Rajammal vs. State of Tamil Nadu and another reported in 1999 (1) CC 417, wherein, the Apex Court has held that it is for the authority concerned to explain the delay, if any, in disposal of the representation of the detenu and if any delay was caused on account of any 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 35 days in considering the representation of the petitioner remains unexplained by the respondents. Hence, in our considered view, the impugned detention order is liable to be set aside solely on the ground of delay by following the above decision of the Apex Court. 9.In fine, the Habeas Corpus Petition is allowed. The detention order in M.H.S.Confdl No.03/2021, dated 12.01.2021, passed by the second respondent, is set aside. Consequently, the detenu, namely, Ram @ Ramamoorthy, S/o.Sakthivel, aged about 24 years, who is now detained at Central Prison, Palayamkottai, Tirunelveli, 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) mpk 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 of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The District Collector cum District Magistrate, Tirunelveli, Tirunelveli District.
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3. The Superintendent of Prison, Central Prison, Palayamkottai Tirunelveli District.
4.The Joint Secretary to Government, Public (Law & Order), Fort saint George, Chennai-600 009.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
+1 CC to M/s.K.SIVABALAN, Advocate ( SR-26681[F] dated 18/08/2021 ) H.C.P.(MD) No.331 of 2021 16.08.2021 RD(7.09.2021) 4P 7C 4/4