Rajalakshmi v. State Of Tamilnadu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA H.C.P.[MD].No.1377 of 2017 Rajalakshmi : Petitioner Vs.

1. State of Tamil Nadu, Rep by its Secretary to Government, Govt. of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-600 009.

2. The Commissioner of Police, Office of Commissioner of Police, Thiruchirapalli City, Thiruchirapalli.

3. The Superintendent, Central Prison, Thiruchirapalli.

: Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for records pertaining to the proceedings of the 2nd respondent made in his proceedings in Detention Order C.No.31/Detention/C.P.O/T.C/2017 dated 26.08.2017 and quash the same and set the petitioner's son by namely, "Kaliamoorthy, S/o.Balraj, aged about 34 years at liberty from Central Prison, Tiruchirapalli.

For Petitioner : Mr.M.M.Karunanithi For Respondents : Mr.C.Ramesh Additional Public Prosecutor

O R D E R

*********** [Order of the Court was made by R.SUBBIAH, J.] The present Habeas Corpus Petition has been filed by the mother of the detenu - Kaliamoorthy, S/o.Balraj, aged about 34 years. The detenu has been detained, as per the order of the second respondent dated 26.08.2017 in Detention Order C.No.31/Detention/C.P.O/T.C/ 2017, under Section 2(f) of the Tamilnadu Act 14 of 1982, branding him as "Goonda". Challenging the same, the petitioner has come up with this Habeas Corpus Petition.

2. We have heard the learned counsel for the petitioner and the learned State Public Prosecutor appearing 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 26.08.2017. As against the same, the petitioner made a representation on 31.08.2017. The remarks were called for by the Government from the Detaining Authority on Nil. The remarks were received on 08.09.2017. Thereafter, the Government considered the issue and passed the order rejecting the representation on 04.10.2017. It is the contention of the petitioner that there was delay of 10 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 10 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 Detention Order C.No.31/Detention/C.P.O/T.C/2017 dated 26.08.2017, is quashed. The detenu, namely, Kaliamoorthy, S/o.Balraj, aged about 34 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, State of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-600 009.

2. The Commissioner of Police, Office of Commissioner of Police, Thiruchirapalli City, Thiruchirapalli.

3. The Superintendent, Central Prison, Thiruchirapalli.

4. The Joint Secretary to Government, Public (Law & Order) Department, Fort St. George, Chennai-9.

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

NS TE/SV-MMS/SAR-4 : 10/01/2018 : 3P/6C ORDER MADE IN H.C.P.[MD].No.1377 of 2017 20.12.2017