B. Prabhu v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.03.2017

CORAM:

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MR.JUSTICE P.VELMURUGAN H.C.P.(MD) No.1133 of 2016 B.Prabhu ... Petitioner -vs1.The Secretary to the Government Home, Prohibition and Excise Department Secretariat, Chennai-600 009 2.The Commissioner of Police Madurai City, Madurai 3.The Superintendent of Prisons 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 the entire records pertaining to the impugned detention order passed by the second respondent made in his proceedings in 42/BCDFGISSSV/2016, dated 30.06.2016, in detaining the detenue under Section 2(f) of the Tamilnadu Act 14 of 1982 as a GOONDA and quash the same and direct the respondents to produce the detenue, namely, T.Muthupandi, son of Thangaraj, Male, aged about 26 years, who is detained in Central Prison, Madurai, before this Court and set him at liberty.

For Petitioner :

Mr.H.Shahul Hameed For Respondents :

Mr.C.Ramesh Addl. Public Prosecutor

O R D E R

[Order of the Court by T.S.SIVAGNANAM, J.] The petitioner is the cousin brother of the detenu, namely, T.Muthupandi, son of Thangaraj, Male, aged about 26 years. The

detenu has been detained by the second respondent by his order in 42/BCDFGISSSV/2016, dated 30.06.2016, 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 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 30.06.2016. The petitioner made a representation on 21.07.2016. Thereafter, remarks were called for by the Government from the Detaining Authority on 26.07.2016. The remarks were duly received on 29.07.2016. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 09.08.2016.

6. It is the contention of the petitioner that there was a delay of 11 days in considering the representation, of which 04 days were Government Holidays, hence, there was another inordinate delay of 07 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 07 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 42/BCDFGISSSV/2016, dated 30.06.2016, passed by the second respondent is set aside. The detenu, namely, T.Muthupandi, son of Thangaraj, aged about 26 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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

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

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

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

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-9.

+1 CC to M/s.M.SAHKUL HAMEED, Advocate, SR No. 17450 KRK PSM/JC/SAR3/10.04.2017/3P/7C H.C.P.(MD) No.1133 of 2016 23.03.2017