M. Malliga v. The Secretary To Govt.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.12.2015
CORAM:
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.1221 of 2015 M.Malliga :Petitioner Vs.
1.The State of Tamil Nadu, The Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Chennai 600 009.
2.The District Collector and District Magistrate, O/o The District Collector and District Magistrate, Karur District, Karur.
3.The Superintendent of Central Prison, Central Prison, Trichirappalli.
: 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.M.P.No.08/2015, dated 08.08.2015, 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's husband, namely, S.Murugesan, S/o.Sellappan, male, aged about 50 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 is the wife of the detenu - S.Murugesan, S/o.Sellappan, aged about 50 years. He has been detained, as per the order of the second respondent, dated 08.08.2015, under Section 2(gg) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drugoffenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act,1982, (Tamil Nadu Act 14 of 1982), read with the order issued by the Government in G.O.(D).No.155, Home Prohibition and Excise (XVI) Department, dated 18.07.2015, under Sub-Section (2) of Section 3 of the said Act, branding him as "Sand Offender". Challenging the same, she 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 representation made by the petitioner was 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 representation, 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 08.08.2015. As against the same, the petitioner made a representation dated 17.08.2015. The remarks were called for by the Government from the Detaining Authority on 20.08.2015. The remarks were received on 25.08.2015. Thereafter, the Government considered the issue and passed the order rejecting the representation on 03.09.2015. It is the contention of the petitioner that there was delay of four days in submitting the remarks by the Detaining Authority and thereafter, there was delay of six days in considering the representation.
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 ten working days 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 08.08.2015, made in Cr.M.P.No.08.2015, passed by the second respondent and directs the release of the detenu, by name S.Murugesan, S/o.Sellappan, male, aged about 50 years, forthwith, if his continued custody is not authorised in specific cases or by any other detention order. Sd/- Assistant Registrar(Crl.side) /True copy/ Sub Assistant Registrar(CS) To 1.The Secretary to Government, State of Tamilnadu, Home, Prohibition and Excise Department, Fort.St.George, Chennai 600 009.
2. The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Secretariat, Chennai-9.
3.The District Collector and District Magistrate, O/o The District Collector and District Magistrate, Karur District, Karur.
4.The Superintendent of Central Prison, Central Prison, Trichirappalli.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
+1cc to M/s.K.A.S.Prabhu, Advocate in SR.No.69093 H.C.P(MD)No.1221 of 2015 Dated: 03.12.2015 nb PBK/JGB-DP/SAR-I 04/12/2015 ::3P-8C:: (IT)