K.Kaliammal, v. The Secretary To Government,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.05.2017

CORAM:

THE HONOURABLE MR.JUSTICE M.V. MURALIDARAN AND THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN H.C.P(MD)No.1734 of 2016 K.Kaliammal : Petitioner Vs.

1. The Secretary to Government, Rep.by its Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Chennai -9

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

3. The Inspector of Police, Puliyangudi Police Station, Tirunelveli District.

3. The Superintendent of Police, Central Prison, Palayamkottai, Tirunelveli District.

: Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for entire records, connected with the detention order passed by the 2nd respondent in No.M.H.S.Confdl.No.172/2016, dated 05.12.2016 and to quash the same and direct the respondents to produce the detenu, Kombiah, aged 28 years, S/o. Karuppasami Thevar alias Veerapuli, before this Hon'ble Court and set him at liberty, now detained at Central Prison, Palayamkottai.

For Petitioner : Mr.S.Sundara Pandian For Respondents : Mr.C.Ramesh Additional Public Prosecutor.

O R D E R

*********** [Order of the Court was made by M.V. MURALIDARAN, J.] The petitioner is the detenu Kombiah, son of Karuppasami Thevar alias Veerapuli, aged about 28 years. The detenu has been detained by the second respondent by his order in

M.H.S.Confdl.no.172 of 2016 dated 05.12.2016, 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 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 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 05.12.2016. The petitioner made a representation dated 23.12.2016. Thereafter, remarks were called for by the Government from the Detaining Authority on 27.12.2016. The remarks were duly received on 05.01.2017. Thereafter, the Government considered the matter and passed the order rejecting the representation on 30.01.2017.

6. It is the contention of the petitioner that there was a delay of 7 days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of 13 days in considering the representation.

7. In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble 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, [2007 (2) MWN (Cr.) 1451, 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, [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 very detention illegal.

10. In the subject case, admittedly, there is an inordinate and unexplained delay of 7 days in submitting the remarks by the Detaining Authority and 13 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Detention Order, passed by the second respondent, in his proceedings in M.H.S.Confdl.No.172 of 2016, dated 05.12.2016, is qaushed. The detenu, namely, Kombiah, S/o. Karuppasami Thevar @ Veerapuli, aged 28, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.

12. In the upshot, we allow the Habeas Corpus Petition. Sd/- Assistant Registrar(Co) /True Copy/ Sub Assistant Registrar To

1. The Secretary to Government, Rep.by its Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Chennai -9

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

3. The Inspector of Police, Puliyangudi Police Station, Tirunelveli District.

4. The Superintendent of Police, Central Prison, Palayamkottai, Tirunelveli District.

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

6.The Joint Secretary to Government, Public (Law & order) Department, Fort St.George, Chennai-9.

+1 cc to Mr.S.Sundara Pandian , Advocate in SR.No. 56523 nbj AE/MR KKR/SAR3/09.08.2017/4P/8C ORDER MADE IN H.C.P(MD)No.1734 of 2017 Dated:16.05.2017