Mary Irin Konseeli, v. The Secretary To Government,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.07.2017

CORAM:

THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.(MD) No.1645 of 2016 Mary Irin Konseeli ... Petitioner -vs1.The Secretary to Government, Government of Tamilnadu, Home, Prohibition and Excise (IX) Department, Secretariat, George Fort, Chennai - 600 009.

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

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

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records on the file of the 2nd respondent in Detention Order No.47/2016 and set-aside the order of detention passed therein dated 25.11.2016, direct the Respondents to produce the detenue by name Joseph Antony Kishore, aged 31 years son of Joseph Akilai before this Honourable Court, now detained at Central Prison, Madurai, and set him at liberty forthwith.

For Petitioner :

Mr.J.William Christopher 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, Joseph Antony Kishore, son of Joseph Akilai, Male, aged about 31 years. The detenu has been detained by the second respondent by his order in Detention Order No.47/2016, dated 25.11.2016, holding him to be

a "Sexual Offender", as contemplated under Section 2(ggg) 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 25.11.2016. The petitioner made a representation on 01.12.2016. Thereafter, remarks were called for by the Government from the Detaining Authority on 05.12.2016. The remarks were duly received on 16.12.2016. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 19.01.2016.

6. It is the contention of the petitioner that there was a delay of 11 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence there was an inordinate delay of 8 days in submitting the remarks. Thereafter, there was another delay of 34 days in considering the representation, of which 11 days were Government Holidays, hence, there was another inordinate delay of 23 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 8 days in submitting the remarks by the Detaining Authority and 23 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 Detention Order No.47/2016, dated 25.11.2016, passed by the second respondent is set aside. The detenu, namely, Joseph Antony Kishore, son of Joseph Akilai, aged about 31 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(AE) / True Copy / Sub Assistant Registrar(C.S.) To:

1.The Secretary to Government, Government of Tamilnadu, Home, Prohibition and Excise (IX) Department, Secretariat, George Fort, Chennai - 600 009.

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

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

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

+1cc to M/S.J.WILLIAM CHRISTOPHER, Advocate SR.No.63775 sj MAS/MR-KKR/SAR2:14.07.2017:3p-6c H.C.P.(MD) No.1645 of 2016 04.07.2017