Thenmalli v. The Secretary To The

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.07.2016

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN and THE HONOURABLE MR.JUSTICE B.GOKULDAS H.C.P(MD)No.392 of 2016 Thenmalli : Petitioner Vs.

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

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

3. The Superintendent, Central Prison, Tiruchirappalli.

: 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 pertaining to the order made in C.O.C.No.26/2016, dated 23.03.2016, in detaining the detenu under 2(b) of Tamil Nadu Act, 14 of 1982, as a Bootlegger and quash the same and direct the respondents to produce the detenu - Balu @ Balasubramaniyan, S/o.Packirisamy, Male, aged 43 years, who is detained at Central Prison, Tiruchirappalli, before this Court and set him at liberty. For Petitioner : Mr.M.Palaniraja 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 wife of the detenu - Balu @ Balasubramaniyan, who is under detention, pursuant to the order passed by the second respondent dated 23.03.2016, in C.O.C.No.26/2016, under Section 2(b) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drugoffenders, 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.26, Home Prohibition and Excise (XVI) Department, dated 18.01.2016, under Sub-Section (2) of Section 3 of the said Act, branding him as "Bootlegger". 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 23.03.2016. The petitioner made a representation dated 28.03.2016. Thereafter, remarks were called for by the Government from the Detaining Authority on 01.04.2016. The remarks were duly received on 11.04.2016. Thereafter, the Government considered the matter and passed the order rejecting the representation on 17.05.2016.

6. It is the contention of the petitioner that there was a delay of 6 days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of 25 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 6 days in submitting the remarks by the Detaining Authority and 25 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 C.O.C.No.26/2016, dated 23.03.2016, is quashed. The detenu, namely, Balu @ Balasubramaniyan, S/o.Packirisamy, Male, aged 43 years, 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 (Crl.Side) /True Copy/ Sub Assistant Registrar (CS) To

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

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

3. The Superintendent, Central Prison, Tiruchirappalli.

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

NB JM/NGM-MP/26.07.2016/3P-5C ORDER MADE IN H.C.P(MD)No.392 of 2016 Dated: 12.07.2016