Kali Alias Kalimuthu v. The Secretary To Government,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.11.2015
CORAM:
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.1111 of 2015 Kali Alias Kalimuthu : Petitioner Vs.
1.The State of Tamil Nadu, The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Karur District, Karur.
3.The Superintendent of Central Prison, The Central Prison, Tiruchirappalli. : Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the entire records in detention order passed in Cr.MP.No.07/2015, dated 19.07.2015, on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner, namely, Kali alias Kalimuthu, S/o.Ramasamy, male aged 37 years, who is detained in Central Prison, Trichirappalli, before this Court and set him at liberty.
For Petitioner : Mr.K.A.S.Prabhu For Respondents : Mr.A.Ramar, Additional Public Prosecutor.
O R D E R
*********** [Order of the Court was made by V.S.RAVI,J] The petitioner - R.Kali alias Kalimuthu, S/o.Ramasamy, aged about 37 years, has been detained, as per the order of the second respondent, dated 19.07.2015, under Section 2(f) of the Tamilnadu Act 14 of 1982, branding him as "Goonda". Challenging the same, he has come up with 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 carefully.
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 violation of procedural safeguards, which are guaranteed under Articles 21 and 22 of the Constitution of India. The learned counsel would submit that the representations made by the petitioner were not considered on time and there was an inordinate and unexplained delay. The learned counsel has relied on few Judgments of the Hon'ble Supreme Court. Based on the same, the learned counsel would plead for setting aside the detention order.
4. The learned Additional Public Prosecutor would, however, oppose this Habeas Corpus Petition. He would submit that though there was delay in considering the representations, on that score, the impugned detention order need not be interfered with, as on account of the said delay, 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. We have considered the above submissions.
6. In this case, the Detention Order was passed on 19.07.2015. As against the same, the petitioner made two representations on 23.07.2015. The remarks were called for by the Government from the Detaining Authority on 03.08.2015 and 01.09.2015. The remarks were received on 11.08.2015 and 07.09.2015. Thereafter, the Government considered the issue and passed the order rejecting the first representation on 14.08.2015 and the Second on 15.09.2015. It is the contention of the petitioner that there was delay of six and four days respectively in submitting the remarks by the Detaining Authority and there was delay of two and six days on the part of the Government in considering the said representations.
7. Now, the question is as to whether on that score, the impugned order can be quashed.
8. In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble Supreme Court has held that the right to life and liberty of a person is protected, under Article 21 of the Constitution of India. The Hon'ble Supreme Court has further 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 of the detenu.
9. 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 detention order.
10. 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 detention illegal. This dictum has been followed in several Judgments consistently by the Hon'ble Supreme Court as well as this Court.
11. Applying the said dictum laid down by the Hon'ble Supreme Court, if we look into the facts of the present case, undoubtedly, there is an inordinate and unexplained delay of eight and ten working days in considering the above mentioned representations and therefore, the
impugned detention order is liable to be quashed.
12. In the result, this Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 19.07.2015, made in Cr.MP.No.07/2015, by the second respondent, the District Collector and District Magistrate, Karur District, Karur, and directs the release of the detenu, by name Kali alias Kalimuthu, S/o.Ramasamy, male aged 37 years, if his continued custody is not authorised in specific cases or by any other detention order.
Sd/- Assistant Registrar(Writs) /True Copy/ Sub Assistant Registrar.
To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Karur District, Karur.
3.The Superintendent, The Central Prison, Trichirapalli.
4.The Joint Secretary to Government Public (Law and Order)Department, Fort St.George, Chennai.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Order Made in H.C.P(MD)No.1111 of 2015 Dated: 25.11.2015 AM/08.12.2015/NGM.SS/3P/6C