Mehar Banu, W/O.Jaheerushine v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.10.2019

CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH Mehar Banu : Petitioner/Mother of the detenue Vs.

1.State of Tamil Nadu represented by its Secretary to Government Govt. of Tamilnadu Home, Prohibition and Excise Department Chennai-9.

2.The Commissioner of Police, Madurai City, Madurai 3.The Superintendent of Prison, The Borstal School and District Prison, Pudukottai.

: Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus, to call for the entire records connected with the detention order of the 2nd respondent in his proceedings No.14/BCDFGISSSV/2019 dated 11.02.2019 and quash the same and direct the respondents to produce the body or person of the detenu by name Suberali, S/o.Jaheerushine, aged about 20 years now confined at the Borstal School and District Prison, Pudukottai before this Court and set him at liberty forthwith. For Petitioner : Mr.M.Karunanithi For Respondents : Mr.K.Dinesh Babu Additional Public Prosecutor

ORDER

S.VAIDYANATHAN, J.

AND N.ANAND VENKATESH, J.

Challenge is made to the order of detention passed by the second respondent vide proceedings in No.14/BCDFGISSSV/2019 dated 11.02.2019, whereby, the detenu was ordered to be detained under the provisions of the Tamil Nadu Act 14 of 1982, branding him as a "Goonda".

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2.As per the grounds of detention, dated 11.02.2019, the detenu came under adverse notice in two adverse cases and in the ground case, which was registered in Crime No.1711/2018 on the file of the D2 Sellur Police Station, who is the sponsoring authority, for offence under Sections 147, 148, 341, 307, 379 (NP), 302 IPC and Section 3(1) of TNPPDL Act.

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 11.02.2019. As against the same, the petitioner made a representation on 18.06.2019. The remarks were called for by the Government from the Detaining Authority on 20.06.2019. The remarks were received on 24.06.2019. Thereafter, the Government considered the issue and passed the order rejecting the representation on 05.07.2019. There are totally 10 days delay in considering the representation. It is the contention of the petitioner that excluding 2 days towards public holidays, there was delay of 8 days in considering the representation.

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.

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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. 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 8 working days and therefore, the impugned detention order is liable to be quashed.

12. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the second respondent, in his proceedings in No.14/BCDFGISSSV/2019 dated 11.02.2019 is quashed. The detenu, namely, Suberali, S/o.Jaheerushine, aged about 20 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(CO) // True Copy // Sub Assistant Registrar(CS) RR To 1.The Secretary to Government Govt. of Tamilnadu Home, Prohibition and Excise Department Chennai-9.

2.The Commissioner of Police, Madurai City, Madurai 3.The Superintendent of Prison, The Borstal School and District Prison, Pudukottai.

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4. The Joint Secretary to Government, Public (Law & order), Fort St. George, Chennai - 9. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order made in Dated: 04.10.2019 MR(CO) TR(23.10.2019) 4P 6C 4/4