Solaiyammal v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.08.2017

CORAM:

THE HON'BLE MR.JUSTICE M.M.SUNDRESH AND THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P(MD)No.479 of 2017 Solaiyammal : Petitioner Vs.

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

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

3. The Superintendent, Central Prison, Madurai.

: Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, calling for the entire records in detention order passed in Cr.M.P.No.13/2017 dated 13.03.2017 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's Husband namely Guruvaiah @ Guruvi, S/o.Velu, male, aged 45 years, who is detained in Central Prison, Madurai before this Court and set him at liberty. For Petitioner : Mr.K.A.S.Prabhu For Respondents : Mr.C.Ramesh Additional Public Prosecutor.

ORDER

(Order of the Court was made by M.M.SUNDRESH, J) The petitioner is the wife of the detenu- Guruvaiah @ Guruvi S/o.Velu, aged about 45 years and detenu has been detained by the second respondent by his proceedings in Cr.M.P.No.13/2017, dated 13.03.2017, holding him to be a "SAND OFFENDER", as contemplated under Section 2(gg) 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 for the petitioner and the learned Additional Public Prosecutor 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 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 opposed the Habeas Corpus Petition. 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 detenue and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

5. The Detention Order in question was passed on 13.03.2017. The petitioner made a representation dated 28.03.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 03.03.2017. The remarks were duly received on 17.04.2017. Thereafter, the Government considered the matter and passed the order rejecting the representation on 18.05.2017.

6. It is the contention of the petitioner that there was a delay of 8 days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of 20 days in considering the representation.

7. In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble 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 detenue.

8. 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 detenue would be sufficient to set aside the order of detention.

9. 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 very detention illegal.

10. In the subject case, admittedly, there is an inordinate and unexplained delay of 8 days in submitting the remarks by the Detaining Authority and 20 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Habeas Corpus Petition is allowed and the Detention Order passed by the second respondent, in his proceedings in Cr.M.P.No.13/2017, dated 13.03.2017 is quashed. The detenu, namely, Guruvaiah @ Guruvi, Son of Velu, aged about 45 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 (AE) /True copy/ Sub Assistant Registrar To

1. The Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

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

3. The Superintendent, Central Prison, Madurai.

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

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

RMI/VSN PSM/GT/SAR1/24.08.2017/3P/6C ORDER MADE IN H.C.P(MD)No.479 of 2017 Dated:16.08.2017