Gokulaprabhu v. The Additional Chief Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM and THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI Gokulaprabhu ... Petitioner -vs1.The Additional Chief Secretary to the Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Ramanathapuram District.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a writ of habeas corpus calling for the entire records connected with the detention order of the respondent No.2 in TN.P.D.A.B.C.D.F.G.I.S.S.S.V. No.03/S.O/2020 dated 12.02.2020 and quash the same and direct the respondents to produce the body or person of the detenu by name Gokulaprabhu son of Balasubramanian aged about 25 years now detained as "Sexual Offender" at Madurai Central Prison before this Court and set him at liberty forthwith. For Petitioner : Mr.R.Alagumani For Respondents: Mr.K.Dinesh Babu Additional Public Prosecutor
O R D E R
[Order of the Court was made by K.KALYANASUNDARAM, J.] Heard Mr.R.Alagumani, learned counsel for the petitioner and Mr.K.Dinesh Babu, learned Additional Public Prosecutor for the respondents and perused the materials available on record. 1/4
2.Challenging the order of detention in TN.P.D.A.B.C.D.F.G.I.S.S.S.V. No.03/S.O/2020 dated 12.02.2020 passed by the second respondent, branding the detenu, namely, Gokulaprabhu son of Balasubramanian, male aged about 25 years, as "Sexual Offender" as contemplated under Section 2(ggg) of the Tamil Nadu Act 14 of 1982, the detenu himself has filed this habeas corpus petition.
3. The learned counsel for the petitioner would submit that the detention order impugned in this habeas corpus petition is liable to be set aside on two grounds. Firstly, there was no proper intimation of arrest of the detenu in the ground case. He would further submit that no details have been furnished particularly the cell number mentioned at page 81 of the booklet, whether it belongs to the family members of the detenu or his relatives. It is also stated that the text of the SMS also not found in the booklet. In this regard, the learned counsel has placed reliance upon the decision of the Honourable Apex Court in the case of D.K.Basu vs. State of West Bengal, reported in AIR (1997) SC 610. Secondly, there is unexplained delay in considering the representation of the petitioner, which would vitiate the detention order.
In this regard, the learned counsel has placed reliance upon 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. 4.Per contra, the learned Additional Public Prosecutor, while reiterating the counter affidavit filed by the second respondent, submitted that the Detaining Authority has arrived at the subjective satisfaction based on the materials placed by the Sponsoring Authority and there is no infirmity or irregularity in the impugned order of detention passed by the second respondent and hence, prayed for dismissal of the habeas corpus petition.
5.We have heard the rival submissions and perused the materials available on records.
6. Perusal of the arrest intimation form available at Page No.81 of the booklet shows that the arrest of the detenu in the ground case was intimated through SMS to the Cell No.8870891182. However, there is no material to show that the said Cell Number belongs to the family members of the detenu or his relatives and the text of the message is also not found place in the booklet. 7.This Court, following the decision of the Honourable Apex Court in the case of D.K.Basu (cited supra), in several cases, has consistently held that if there is no proper intimation of arrest of the detenu either to his family members or his relatives, his valuable rights would seriously prejudiced on the sense that they will not have the opportunity to make effective representation to the Authority concerned in time for revocation of the detention order.
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8. Further, in the instant case, it is not in dispute that the detenu was detained by the order of the second respondent, dated 12.02.2020. Aggrieved over the same, a representation dated 24.02.2020 has been sent to the first respondent and the same was received on 27.02.2020 and on the same day, remarks were called for and the remarks were received on 09.03.2020. The Deputy Secretary dealt with the matter on 09.03.2020. The concerned Minister dealt with the matter on 17.03.2020 and thereafter, on the same day, the detenu's representation was rejected. It is seen that there was delay of 10 days between 27.02.2020 and 09.03.2020. It is also seen that there are 4 Government holidays and after excluding the same, there is a delay of 6 days in considering the representation of the detenu.
9.In the case of Rajammal vs. State of Tamil Nadu and another (1999 (1) SCC 417) the Honourable Apex Court observed and held that it is for the authority concerned to explain the delay, if any, in disposal of the representation and 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.
10. In the case on hand, there is absolutely no explanation for the delay of 6 days in considering the representation of the detenu. Hence, in our considered view, the detention order is liable to be set aside on the ground of delay also by following the decision of the Honourable Apex Court referred supra.
11. In view of that, the order of detention passed by the second respondent, in TN.P.D.A.B.C.D.F.G.I.S.S.S.V. No.03/S.O/2020 dated 12.02.2020, is set aside and the habeas corpus petition is allowed. Consequently, the detenu, namely, Gokulaprabhu son of Balasubramanian, male aged about 25 years, who is detained at Central Prison, Madurai, is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case.
Sd/- Assistant Registrar (T & P) // True Copy // / /2020 Sub Assistant Registrar(CS) Skn 3/4
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 the Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Ramanathapuram District.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5.The Joint Secretary to Government, Public(Law & Order)Department, Fort Saint George, Chennai-9.
08.12.2020 PK (CO) NR (31/12/2020) 4P : 6C 4/4