M.Krishnasamy v. The Principal Secretary To
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.06.2017
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM AND THE HONOURABLE MR.JUSTICE P.VELMURUGAN H.C.P(MD)No.505 of 2017 M.Krishnasamy : Petitioner Vs.
1.The Principal Secretary to Government, Home, Prohibition and Excise (IX) Department, State of Tamil Nadu, Fort.St.George, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Trichy District, Trichy.
3.The Superintendent of Prison, Central Prison, Trichy.
: Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the entire records, connected with the detention order of the second respondent in Cr.M.P.No.17/2016, dated 28.09.2016 and quash the same, as illegal and consequently direct the respondents to produce the detenu, by name, Krishnasamy, son of Mariappan, aged about 27 years, now detained in Central Prison, Trichy, before this Court and set him at liberty forthwith.
For Petitioner : Mr.S.Malaikani For Respondents : Mr.T.Mohan Additional Public Prosecutor.
O R D E R
*********** [Order of the Court was made by T.S.SIVAGNANAM, J.] The petitioner is the detenu - Krishnasamy, son of Mariappan, aged about 27 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No.17/2016, dated 28.09.2016, 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 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. No counter affidavit has been filed by the respondents. The learned Additional Public Prosecutor, placing reliance on the proforma, 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 detenu 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 28.09.2016. The petitioner made a representation dated nil. Thereafter, remarks were called for by the Government from the Detaining Authority on 21.10.2016. The remarks were duly received on 18.11.2016. Thereafter, the Government considered the matter and passed the order rejecting the representation on 21.12.2017.
6. It is the contention of the petitioner that there was a delay of 20 days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of 19 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 detenu.
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 detenu 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 20 days in submitting the remarks by the Detaining Authority and 19 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.17/2016, dated 28.09.2016, is quashed. The detenu, namely, Krishnasamy, son of Mariappan, aged about 27 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(CS-III) / True Copy / Sub Assistant Registrar(C.S.) To 1.The Principal Secretary to Government, Home, Prohibition and Excise (IX) Department, State of Tamil Nadu, Fort.St.George, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Trichy District, Trichy.
3.The Superintendent of Prison, Central Prison, Trichy.
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 - 600 009. +1cc to M/S.S.MALAIKANI, Advocate SR.No.62132 NB MAS/MR-KKR/SAR1:07.07.2017:3P-7C ORDER MADE IN H.C.P(MD)No.505 of 2017 Dated:28.06.2017