Eswari v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.06.2016

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN and THE HONOURABLE DR.JUSTICE S.VIMALA H.C.P(MD)No.318 of 2016 Eswari .. Petitioner Vs.

1.The State of Tamil Nadu, rep. By the Secretary to the Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

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

3.The Inspector of Police, N.I.B. C.I.D., Tiruchirapalli.

.. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the records relating to the detention order passed by the second respondent in Detention Order C.No.07/Detention/C.P.O/T.C./2016, dated 15.02.2016 and to quash the same and direct the respondents to produce the person or body of the detenu, Chinnapponnu @ Kamatchi, Wife of Kamaraj, aged about 53 years, before this Court and set her at liberty, now detained at Special Prison for Women, Tiruchirapalli.

For Petitioner : Mr.S.Deenadhayalan For Respondents : Mr.C.Ramesh, Additional Public Prosecutor.

O R D E R

*********** [Order of the Court was made by K.K.SASIDHARAN, J.] This Habeas Corpus Petition is filed by the daughter of the detenu - Chinnapponnu @ Kamatchi, who is under detention, pursuant to the order passed by the second respondent, dated 15.02.2015, in C.No.07/Detention/C.P.O/T.C./2016, under Section 2(e) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum-Grabbers and Video Pirates

Act,1982, (Tamil Nadu Act 14 of 1982), read with the order issued by the Government in G.O.(D).No.8, Home Prohibition and Excise (XVI) Department, dated 18.01.2016, under Sub-Section (2) of Section 3 of the said Act, branding him as "Drug Offender".

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.The learned counsel for the petitioner contended that there is gross violation of procedural safeguards, which would vitiate the order of detention. The learned counsel, by placing authorities, submitted that the representation made by the petitioner was not considered early and there was an inordinate and unexplained delay.

4. The learned Additional Public Prosecutor opposed the Habeas Corpus Petition. According to the learned Additional Public Prosecutor, no prejudice has been caused to the detenu on account of the delay and there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

DISCUSSION

5. The Detention Order in question has been passed on 15.02.2016. The petitioner made a representation dated 09.03.2016. Thereafter, remarks were called for by the Government from the Detaining Authority on 14.03.2016. The remarks were received on 21.03.2016. The Government considered the matter and passed the order rejecting the representation on 05.04.2016.

6. It is the contention of the petitioner that there was a delay of 5 days in submitting the remarks by the Detaining Authority. There was again a delay of 8 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.) 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, [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 5 days in submitting the remarks by the Detaining Authority and 8 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the impugned Detention Order, passed by the second respondent, in his proceedings in C.No.07/Detention/C.P.O/T.C./2016, dated 15.02.2016 is quashed. The detenu, namely, Chinnapponnu @ Kamatchi, W/o.Kamaraj, 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 /True Copy/ Sub Assistant Registrar.

To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

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

3 The Superintendent of Special Prison for Women, Trichirappalli. (In duplicate communicate to detenu) 4.The Inspector of Police, N.I.B. C.I.D., Tiruchirapalli.

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

+1CC to M/S.S.Deenadayalan, Advocate, SR.No.28879 Order made in H.C.P(MD)No.318 of 2016 Dated: 07.06.2016 gcg AM/KBM/17.06.2016/3P/8C