Jeyakodi v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.08.2017

CORAM:

THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.(MD) No.783 of 2017 Jeyakodi ... Petitioner -vs1.State of Tamil Nadu, Rep by its Secretary to Government, Govt. of Tamil Nadu, Home, Prohibition and Excise Department, Chennai - 9.

2.The Commissioner of Police, Madurai City, Madurai.

3.The Superintendent, Central Prison, Madurai.

... Respondents PRAYER: Petition 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 second respondent made in his proceedings No.24/BCDFGISSSV/2017 dated 31.03.2017 and quash the same and set the petitioner's son by name "Kalimuthu @ Kali @ Vellai Kali, S/o. Shanmugavel, aged about 29 years at liberty from third respondent.

For Petitioner :

Mr.M.Jegadeesh Pandian 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 mother of the detenu, namely, Kalimuthu @ Kali @ Vellai Kali, Son of Shanmugavel, male, aged about 29 years. The detenu has been detained by the second respondent by his order in No.24/BCDFGISSSV/2017 dated 31.03.2017, holding him to be a "Goonda", as contemplated under 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 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 31.03.2017. The petitioner made a representation, dated 16.05.2017 and the same was received on 19.05.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 19.05.2017. The remarks were duly received on 22.05.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 15.06.2017.

6. It is the contention of the petitioner that there was a delay of 3 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was an inordinate delay of 1 days in submitting the remarks. Thereafter, there was another delay of 23 days in considering the representation, of which 6 days were Government Holidays, hence, there was another inordinate delay of 17 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 1 days in submitting the remarks by the Detaining Authority and 17 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.24/BCDFGISSSV/2017 dated 31.03.2017, passed by the second respondent is set aside. The detenu, namely, Kalimuthu @ Kali @ Vellai Kali, Son of Shanmugavel, Male, aged about 29 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(Writs) /True Copy/ Sub Assistant Registrar To:

1.The Secretary to Government, Govt. of Tamil Nadu, Home, Prohibition and Excise Department, Chennai - 9.

2.The Commissioner of Police, Madurai City, Madurai.

3.The Superintendent, Central Prison, Madurai.

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

H.C.P.(MD) No.783 of 2017 11.08.2017 cp/akv JM/KK/SAR 1/22.08.2017/3P/5C