Gunasundari v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.08.2015

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.472 of 2015 Gunasundari ... Petitioner Vs.

1. State of Tamil Nadu rep. By, The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9.

2. The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the records pertaining to the impugned Detention Order passed by the second respondent made in his proceedings in C.No.10/Detention/C.P.O/T.C/2015 dated 04.04.2015 in detaining the detenu under Section 2(b) of Tamil Nadu Act 14 of 1982 as a Bootlegger and quash the same and direct the respondents to produce the Detenu namely Dhayalan, S/o.Palanisamy, aged about 31 years, who is detained in Central Prison, Tiruchirappalli.

For petitioner : Mr. K.M.Karunakaran For respondents : Mr. T.Mohan 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 one Dhayalan. He has been detained as per the order of the second respondent under Section 2(b) of the Tamil Nadu Act 14 of 1982, branding him as "Boot Legger".

2. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents and 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. But, 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 04.04.2015. As against the same, the petitioner made a representation on 08.04.2015. The remarks were called for by the Government from the Detaining Authority on 13.04.2015. The remarks were received by the Detaining Authority on 23.04.2015. Thereafter, the Government considered the issue and passed the order rejecting the representation on 07.05.2015. It is the contention of the petitioner that there was delay of seven days on the part of the Detaining authority in considering the representation and there was delay of six days on the part of the Government in considering the same.

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/detenue 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 thirteen working days and therefore, the impugned detention order is liable to be quashed.

12. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the second respondent, in his

proceedings in C.No.10/Detention/C.P.O/T.C/2015 dated 04.04.2015 is quashed. The detenu, by name, Dhayalan, S/o.Palanisamy, aged 31 years, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.

Sd/- Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To:

1. The Secretary to Government to State of Tamil Nadu Home, Prohibition and Excise Department, Fort St. George, Chennai-9.

2. The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli.

3. The Superintendent,Central Prison, Tiruchirappalli. (in duplicate to communicate the detenu)

4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

ORDER MADE IN H.C.P(MD)No.472 of 2015 13.08.2015 pmu PA/KBM/SAR-I/18.08.2015/3P/6C