Ishwarya v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.09.2022

CORAM

THE HON'BLE MRS JUSTICE J. NISHA BANU AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.599 of 2022 Ishwarya .. Petitioner Vs.

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600 009.

2.The District Collector and District Magistrate, Thanjavur District, Thanjavur.

3.The Inspector of Police, Nachiyarkoil Town Police Station, Thanjavur District.

4.The Superintendent of Prison, Central Prison, Trichy.

.. 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 order of detention passed by the second respondent in his proceedings P.D.No. 26/2022 dated 20.03.2022 and quash the same as illegal and produce the detenu namely Prem @ Premkumar, son of Manivannan, aged about 22 years, now he is confined in Central Prison, Trichy before this Court and set him at liberty.

For Petitioner : Mr.T.Lenin Kumar For Respondents : Mr.A.Thiruvadikumar Additional Public Prosecutor

ORDER

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

The petitioner is the wife of the detenu viz., Prem @ Premkumar, son of Manivannan, aged about 22 years. The detenu has been detained by the second respondent by his order in P.D.No.26/2022 dated 20.03.2022 holding him to be a "Goonda", as contemplated under Section 2(f) 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 Judicial Magistrate No.II, Kumbakonam, and the same is yet to be taken on file.

6. The Detention Order in question was passed on 20.03.2022. The petitioner made a representation dated 12.04.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 19.04.2022. The remarks were duly received on 05.05.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 09.05.2022.

7. It is the contention of the petitioner that there was a delay of 15 days in submitting the remarks by the Detaining Authority, of which 5 days were Government Holiday and hence there was an inordinate delay of 10 days in submitting the remarks. It is the further contention of the

petitioner that the remarks were received on 05.05.2021 and there was a delay of 4 day in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 2 days were Government Holidays, 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 12 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 Judicial Magistrate No.II, Kumbakonam, 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 P.D.No.26/2022 dated 20.03.2022 passed by the second respondent is set aside. The detenu, viz., Prem @ Premkumar, son of Manivannan, aged about 22 years, is directed to be released forthwith unless his detention is required in connection with any other case. (J.N.B.,J.) (N.A.V.,J.) 30.09.2022 Index : Yes/No Internet : Yes RM

To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600 009.

2.The District Collector and District Magistrate, Thanjavur District, Thanjavur.

3.The Inspector of Police, Nachiyarkoil Town Police Station, Thanjavur District.

4.The Superintendent of Prison, Central Prison, Trichy.

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

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

RM H.C.P.(MD)No.599 of 2022 30.09.2022