K.Vaani v. The Principal Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2022

CORAM

THE HON'BLE MRS JUSTICE J. NISHA BANU AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.849 of 2022 K.Vaani ... Petitioner / Mother of the Detenu Vs.

1.Government of Tamil Nadu, Rep.by the Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The Commissioner of Police, Office of the Commissioner of Police, Tiruchirappalli City.

3.The Superintendent, Central Prison, Tiruchirappalli.

...Respondents

PRAYER:

Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the entire records connected with the detention order passed in C.No.52/Detention/C.P.O/TC/2022 dated 19.04.2022 on the file of the second respondent herein and quash the same and direct the respondents to produce the body or person of petitioner's son

namely, Vasanthakumar alias Kumbakudi Vasanth son of Kumar, Male aged about 23 years, now confined at the Central Prison, Trichirappalli, and set him at liberty forthwith.

For Petitioner : Mr.Jameel Arasu For Respondents : Mr.A.Thiruvadikumar Additional Public Prosecutor

ORDER

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

The petitioner is the mother of the detenu viz., Vasanthakumar alias Kumbakudi Vasanth, aged about 23 years, S/o.Kumar. The detenu has been detained by the second respondent by his order in C.No. 52/Detention/C.P.O/TC/2022 dated 19.04.2022 holding him to be a "Goonda", as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition. 2.We have heard the learned counsel appearing 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 second ground that was urged by the learned counsel for the petitioner is that the detaining authority, after noting the fact that the detenu has not filed any bail petition, relied upon the order passed in Cr.M.P.No. 4529 of 2021 to come to a conclusion that bail has been granted in a similar case and hence, there is a likelihood of the detenu coming out on bail. The learned counsel for the petitioner submitted that the bail order that was relied upon by the detaining authority cannot be considered to be a similar case and the detention order suffers from non-application of mind. 5.The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. 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.

6. The Detention Order in question was passed on 19.04.2022. The petitioner made a representation dated 30.04.2022. The remarks were called for by the Government from the Detaining Authority on 05.05.2022. The remarks were duly received on 09.05.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 12.05.2022.

7.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 day in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 09.05.2022 and there was a delay of 2 days, in considering the representation by the Hon'ble Minister for Electricity,

Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, no days were Government Holidays and hence, there was inordinate delay of 2 days in considering the representation. 8.In Rekha vs. State of Tamil Nadu (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.

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 would be sufficient to set aside the order of detention. 10.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.

11. In the subject case, admittedly, there is an inordinate and unexplained delay of 1 day in submitting the remarks by the Detaining Authority and unexplained delay of 2 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed.

12. Insofar as the second ground that was urged by the learned counsel for the petitioner, We have carefully gone through the order passed in Cr.M.P.No.4529 of 2021 and we find that in that order, the previous case as against the accused therein was for an offence under the Prohibition Act, whereas, in the case on hand, the previous case against the detenu was under Sections 307 and 387 IPC. Hence, the order relied upon by the detaining authority cannot be considered to be a similar case. Hence, the detention order suffers from non application of mind.

13.In the result, the Habeas Corpus Petition is allowed and the order of detention in C.No.52/Detention/C.P.O/TC/2022, dated 19.04.2022, passed by the second respondent is set aside. The detenu, viz.,

Vasanthakumar alias Kumbakudi Vasanth, aged about 23 years, S/o.Kumar, is directed to be released forthwith unless his detention is required in connection with any other case.

(J.N.B.,J.) (N.A.V.,J.) 19.10.2022 Index : Yes/No Internet : Yes ta To:

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

2.The Commissioner of Police, Office of the Commissioner of Police, Tiruchirappalli City.

3.The Superintendent, Central Prison, Tiruchirappalli.

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

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

ta H.C.P.(MD)No.849 of 2022 19.10.2022