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Madras High CourtHCP(MD)/466/2021allowed

Thanushkodi v. The Additional Chief Secretary To Government

2021-09-27Honourable Mrs Justice J. Nisha Banu,Honourable Mr Justice V. Bharathidasan4 pages

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 H.C.P.(MD) No.466 of 2021 Thanushkodi ... Petitioner/ detenu -vs1. The Additional Chief Secretary to 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, Theni District.

3. The Superintendent of Prison, Madurai Central Prison, Madurai 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 Detention Order No.13/2021 dated 04.03.2021 and quash the same and direct the respondents to produce the body or person of the detenu by name Thanushkodi, son of Murugan, aged about 35 years, now detained as 'Drug Offender' at Madurai Central Prison before this court and set him at liberty.

For Petitioner : Mr.R.Alagumani 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 detenu, namely Thanushkodi, son of Murugan, aged 35 years, challenging the detention order in No.13/2021, dated 04.03.2021, passed by the second respondent, branding him as "Drug Offender" as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982.

2. Mr.R.Alagumani, learned counsel appearing for the petitioner, would argue that the Detaining Authority, to arrive at the subjective satisfaction, has stated that the detenu likely to be 1/4

released on bail in the ground case. He would further submit that 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. Further, there is no cogent material available in the booklet relating to the possibility of the detenu for coming out on bail. The detenu was arrested on 20.01.2021. But the Detaining Authority has passed the detention order against the detenu after 25 days ie., on 04.03.2021 and the delay for passing the detention order was not properly explained by the Detaining Authority.

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 09.03.2021 and it was received on 16.03.2021. Remarks were called for on the same day ie., on 17.03.2021 and it was received on 12.04.2021. The Deputy Secretary dealt with the matter on 19.04.2021. The concerned Minister dealt with the matter on 19.04.2021 and the representation came to be rejected on 19.04.2021. It is seen that in between 17.03.2021 and 12.04.2021, there was a delay of 15 days, after excluding the Government Holidays of 10 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 15 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 No.13/2021, dated 04.03.2021, passed by the second respondent, is set aside. Consequently, the detenu, namely, Thanushkodi, son of Murugan, aged about 35 years, who is now 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 (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, 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, Theni District.

3. The Superintendent of Prison, Madurai Central Prison, 3/4

Madurai District.

4. The Joint Secretary to Government, Public (Law &Order) Fort St.Goerge, Chennai 600 009 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

H.C.P.(MD) No.466 of 2021 DATED : 27.09.2021 DJ(CO) KB(20.10.2021) 4P 6C 4/4