K.Krishnaveni v. The Principal Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.04.2019

CORAM:

THE HONOURABLE MR.JUSTICE P.N.PRAKASH and THE HONOURABLE MR.JUSTICE B.PUGALENDHI H.C.P.(MD) No.1596 of 2018 K.Krishnaveni ... Petitioner -vs1.State of Tamil Nadu, rep.by The Principal Secretary to Government Home, Prohibition and Excise Department Fort. St.George, Chennai-9 2.The District Collector and District Magistrate Nagapattinam District, Nagapattinam 3.The Superintendent Special Prison for Women Tiruchirappalli ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a writ of habeas corpus calling for the entire records in detention order passed in C.O.C.No.55/2018 dated 30.10.2018 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the Petitioner's Mother namely Murugeswari, wife of Krishnamoorthy, female, aged 55 years, who is detained in Special Prison for Women, Tiruchirappalli, before this Court and set her at liberty.

For Petitioner :

Mr.K.A.S.Prabhu For Respondents :

Mr.M.Chandrasekaran Additional Public Prosecutor

O R D E R

[Order of the Court was made by B.PUGALENDHI, J.] The second respondent clamped an order of detention on 30.10.2018, as against Murugeswari, wife of Krishnamoorthy, as the said Authority arrived at the subjective satisfaction that the said detenue is a 'Boot-Legger' and she has to be detained under Section 3(1) of Tamil Nadu Act 14 of 1982 with a view to prevent her from acting prejudicial to the interest of public health and public order.

2. Challenging the order of detention, the daughter of the detenue has come forward with the present habeas corpus petition.

3. Heard Mr.K.A.S.Prabhu, learned counsel appearing for the petitioner and Mr.M.Chandrasekaran, learned Additional Public Prosecutor appearing for the respondents and carefully perused the records.

4. 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 violation of procedural safeguards, which are guaranteed under Articles 21 and 22 of the Constitution of India. The learned counsel would submit that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay. The learned counsel has relied on few Judgments of the Supreme Court. Based on the same, the learned counsel would plead for setting aside the detention order.

5. The learned Additional Public Prosecutor would, however, oppose this Habeas Corpus Petition. He would submit that though there was delay in considering the representation, on that score, the impugned detention order need not be interfered with, as on account of the said delay, no prejudice has been caused to the detenue and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

6. We have considered the above submissions.

7. In this case, the Detention Order was passed on 30.10.2018.

As against the same, the petitioner made a representation on 07.11.2018. The remarks were called for by the Government from the Detaining Authority on 10.11.2018. The remarks were received on 16.11.2018. Thereafter, the Government considered the issue and passed the order rejecting the representation on 03.12.2018. It is the contention of the petitioner that there was a delay of 10 days in considering the representation.

8. Now, the question is as to whether on that score, the impugned order can be quashed.

9. In Rekha vs. State of Tamil Nadu, [2011 (5) SCC 244], the Supreme Court has held that the right to life and liberty of a person is protected, under Article 21 of the Constitution of India. The Supreme Court has further 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 of the detenu.

10. 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/detenue would be sufficient to set aside the detention order.

11. In Tara Chand Vs. State of Rajasthan and others, [1980

(2) SCC 321], the Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. This dictum has been followed in several Judgments consistently by the Supreme Court as well as this Court.

12. Applying the said dictum laid down by the Supreme Court, if we look into the facts of the present case, undoubtedly, there is an inordinate and unexplained delay of 10 working days and therefore, the impugned detention order is liable to be quashed.

13. The detention order passed by the second respondent detaining the detenue Murugeswari, wife of Krishnamoorthy, made in C.O.C.No.55/2018, dated 30.10.2018, is quashed and the Habeas Corpus Petition is allowed. The above named detenue is ordered to be set at liberty forthwith unless her custody is required in any other case.

Sd/- Assistant Registrar (CO) / True Copy / Sub Assistant Registrar(CS) Krk To:

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

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

3.The Superintendent, Special Prison for Women,Tiruchirappalli.

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

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

H.C.P.(MD) No.1596 of 2018 22.04.2019 ES/15.05.2019/3P/6C