Vembu v. State Of Tamil Nadu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.03.2018

CORAM:

THE HONOURABLE DR. JUSTICE S.VIMALA AND THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI HCP [MD].No.1759 of 2017 Vembu : Petitioner Vs.

1. State of Tamil Nadu, Rep. By The Principal Secretary to Government, Home, Prohibition & Excise Department, Fort St. George, Chennai-600 009.

2. The District Collector and District Magistrate, Kanyakumari District, Nagercoil.

3. The Superintendent, Central Prison, Palayamkottai, Tirunelveli.

: Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus, calling for the entire records connected with the detention order passed in P.D.No.78/2017, dated 20.11.2017 on the file of the 2nd respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu namely Kathiresan, aged about 30 years, S/o.Mani, now detained at Central Prison, Palayamkottai, before this Court and set him at liberty forthwith. For Petitioner : Mr.N.Pragalathan For Respondents : Mr.V.Neelakandan Additional Public Prosecutor

ORDER

[Order of the Court was made by S.VIMALA, J] The petitioner is the mother of the detenu viz., Kathiresan, S/o.Mani, aged 30 years. The detenu has been detained, as per the order of the second respondent, dated 20.11.2017, under Section 2 (gg) of the Tamil Nadu Act 14 of 1982, branding him as "Sand Offender". 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 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 20.11.2017. As against the same, the petitioner made a representation on 27.11.2017. The remarks were called for by the Government from the Detaining Authority on 05.12.2017. The remarks were received on 13.12.2017. Thereafter, the Government considered the issue and passed the order rejecting the representation on 15.12.2017. It is the contention of the petitioner that there was delay of 06 days on the part of the detaining authority in submitting the remarks.

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.In the decision in JAYANARAYAN SUKUL v. STATE OF WEST BENGAL reported in AIR 1970 SC 675, it has been held that the Government has to be vigilent in the governance of the citizens and that the representation should be considered as early as possible without any delay.

12.If any representation is received prior to passing the order of detention, the four principles are to be followed in letter and spirit, which reads as follows:- "First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure the time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board."

13. 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 06 working days in receiving the remarks and therefore, the impugned detention order is liable to be quashed.

14. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the second respondent, in his proceedings in P.D.No.78/2017, dated 20.11.2017, is quashed. The detenu, namely Kathiresan, S/o.Mani, aged 30 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(P&A) /True Copy/ Sub Assistant Registrar

To

1. The Principal Secretary to Government, Home, Prohibition & Excise Department, Fort St. George, Chennai-600 009.

2. The District Collector and District Magistrate, Kanyakumari District, Nagercoil.

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

4. The Superintendent, Central Prison, Palayamkottai, Tirunelveli.

(In duplicate for communication to the detenu)

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

RJ2 VB/SKN/RSK/SAR3/08/03/2018/4P/7C ORDER MADE IN HCP [MD].No.1759 of 2017 07.03.2018