Muthuselvi v. The Principal Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.09.2022

CORAM:

THE HONOURABLE MRS.JUSTICE J. NISHA BANU and THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH Muthuselvi . Petitioner /Mother of Detenu Vs.

1.State of Tamil Nadu, Rep. by Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

2.The District Collector cum District Magistrate, Madurai District, Madurai.

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

4.The Inspector of Police, Othakkadai Police Station, Madurai District.

.. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records relating to the detention order passed by the second respondent in Detention Order BCDFGISSSV.No.18/2022, dated 28.03.2022 and to quash the same and direct the respondents to produce the body or person of the detenu Subbaramanian @ Mani @ Kuttayan Mani, son of Rajendrababu, aged about 22 years, before this Court and set him at liberty, now detained at the Central Prison, Madurai. For Petitioner : Mr.M.Karunanithi For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor

ORDER

J.NISHA BANU, J.

and N.ANAND VENKATESH, J.

The petitioner is the mother of the detenu viz., Subbaramanian @ Mani @ Kuttayan Mani, son of Rajendrababu, aged 1/4

about 22 years. The detenu has been detained by the second respondent by his order in BCDFGISSSV.No.18/2022, dated 28.03.2022, holding him to be a "Drug Offender", as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

3. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel appearing for the petitioner would mainly focus his argument on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. The learned counsel, by placing authorities, submitted that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay.

4. The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. He would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to the learned Additional Public Prosecutor, 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. The learned Additional Public Prosecutor, on instructions, submitted that the investigation has been completed and final report has already been filed before the Special Judge, Special Court for E.C. Act Cases, Madurai, and the same is yet to be taken on file.

6. The Detention Order in question was passed on 28.03.2022. The petitioner made a representation dated 14.04.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 19.04.2022. The remarks were duly received on 09.05.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 16.05.2022.

7. It is the contention of the petitioner that there was a delay of 19 days in submitting the remarks by the Detaining Authority, of which 7 days were Government holidays and hence there was an inordinate delay of 12 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 09.05.2022 and there was a delay of 4 days, in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the Deputy 2/4

Secretary dealt with it, of which, 2 days were a Government Holiday and hence, there was inordinate delay of 2 days in considering the representation.

8. In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the Honourable Supreme Court has 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 undertaken by 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 order of detention.

10. In Tara Chand vs. State of Rajasthan and others, reported in 1980 (2) SCC 321, the Honourable Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.

11. In the subject case, admittedly, there is an inordinate and unexplained delay of 14 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed. There shall be a direction to the learned Special Judge, Special Court for E.C. Act Cases, Madurai, to immediately act upon the final report and proceed in accordance with law.

12. In the result, the Habeas Corpus Petition is allowed and the order of detention in BCDFGISSSV.No.18/2022, dated 28.03.2022 passed by the second respondent is set aside. The detenu, viz., Subbaramanian @ Mani @ Kuttayan Mani, son of Rajendrababu, aged about 22 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar (A.S) // True Copy // /10/2022 Sub Assistant Registrar(CS) rm 3/4

Copy 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 cum District Magistrate, Madurai District, Madurai.

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

4.The Inspector of Police, Othakkadai Police Station, Madurai District.

5. The Joint Secretary to Government, Public (Law & Order), Fort. St.George, Chennai -600009.

6. The Special Judge, Special Court for E.C. Act Cases, Madurai, 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.M.KARUNANITHI, Advocate ( SR-48066[F] dated 30/09/2022 ) 30.09.2022 AMS(20.10.2022) 4P 9C 4/4