Dharmar, v. The Principal Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.08.2017

CORAM:

THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.(MD) No.696 of 2017 Dharmar ... Petitioner -vs1. The Principal Secretary to the Government, Home Prohibition and Excise Department, Secretariat, St. George Fort, Chennai-9.

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

3. The Superintendent of Prison, Central Prison, Madurai.

4. The Inspector of Police, NIB CID Unit, Theni, Theni District.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records pertaining to the order of detention passed by the second respondent vide his proceedings in Detention Order No.7/2017/C3 dated 27.03.2017 and quash the same and consequently set the petitioner at liberty, namely Dharmar, S/o.Palsamy, male, aged 49 years.

For Petitioner :

Mr.R.Anand For Respondents :

Mr.C.Ramesh Additional Public Prosecutor

O R D E R

[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the detenu, namely, Dharmar, Son of Palsamy, male, aged about 49 years. The detenu has been detained by the second respondent by his Detention Order in No.7/2017/C3, dated 27.03.2017, holding him to be a "Drug Offender", as contemplated under 2(e) 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 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 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 27.03.2017. The petitioner made a representation, dated 21.04.2017 and the same was received on 24.04.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 24.04.2017. The remarks were duly received on 04.05.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 16.06.2017.

6. It is the contention of the petitioner that there was a delay of 10 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence there was an inordinate delay of 7 days in submitting the remarks. Thereafter, there was another delay of 42 days in considering the representation, of which 12 days were Government Holidays, hence, there was another inordinate delay of 30 days in considering the representation.

7. In Rekha vs. State of Tamil Nadu, reported in 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.

8. In Sumaiya vs. The Secretary to Government, reported in 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, 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.

10. In the subject case, admittedly, there is an inordinate and unexplained delay of 7 days in submitting the remarks by the Detaining Authority and 30 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 order of detention in No.7/2017/C3, dated 27.03.2017, passed by the second respondent is set aside. The detenu, namely, Dharmar, son of Palsamy, Male, aged about 49 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar(CS-II) /True copy/ Sub Assistant Registrar To:

1. The Principal Secretary to the Government, Home Prohibition and Excise Department, Secretariat, St. George Fort, Chennai-9.

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

3. The Superintendent of Prison, Central Prison, Madurai.

4. The Inspector of Police, NIB CID Unit, Theni, Theni District.

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

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

+1 cc to Mr.R.Anand , Advocate in SR.No. 74037 Am/cp AE/KP/SAR3/04.09.2017/4P/8C H.C.P.(MD) No.696 of 2017 21.08.2017