K.Senthilkumar v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.01.2021

CORAM:

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM and THE HONOURABLE MR.JUSTICE G.ILANGOVAN K.Senthilkumar ... Petitioner -vs1.The State of Tamilnadu Represented by Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.

2.The District Collector, Theni District, Theni.

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

... Respondents PRAYER : Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus calling for the entire records in detention order, passed in Detention Order No.36/2020 dated 12.08.2020 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the petitioner's mother namely Tmt.Eswari @ Mareeswari, wife of Late.Kalaiselvam, Female, aged about 47/2020, who is detained in Special Prison for Women, Madurai, before this Court and set her at liberty.

For Petitioner :

Mr.R.Shankar Ganesh For Respondents :

Mr.K.Dinesh Babu Additional Public Prosecutor

O R D E R

(Order of the Court was made by K.KALYANASUNDARAM, J.) This habeas corpus petition has been filed by the son of the detenu, namely, Tmt.Eswari @ Mareeswari, wife of Late.Kalaiselvam, 1/4

aged about 47 years, challenging the detention order No.36/2020 dated 12.08.2020, passed by the second respondent, branding her as "Drug Offender" as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982.

2. Mr.R.Shankar Ganesh, learned counsel for the petitioner, would argue that even though the petitioner has raised several grounds, he has confined his arguments only to the delay in disposal of the petitioner's representation. It is submitted by the learned counsel for the petitioner that the procedural safeguards guaranteed under Articles 21 and 22 of the Constitution of India have not been followed in this case and there is unexplained and inordinate delay in disposal of the petitioner's representation, which would vitiate the impugned order of detention.

3. Mr.K.Dinesh Babu, learned Additional Public Prosecutor, on instructions, submitted that after satisfying with the materials placed by the Sponsoring Authority, the Detaining Authority has passed the detention order and there is no illegality or infirmity in the detention order. It is also stated that even if there is any delay in disposal of the representation, it has not caused any prejudice to the rights of the detenu and hence, prayed for dismissal of the habeas corpus petition.

4. Heard both sides and perused the materials available on record.

5. In the instant case, the proforma furnished by the learned Additional Public Prosecutor would indicate that as against the impugned detention order, the petitioner made a representation to the first respondent on 06.10.2020 and it was received on 09.10.2020. Remarks were called for on 09.10.2020 and it was received on 23.10.2020. The Deputy Secretary dealt with the matter on 23.10.2020. The concerned Minister dealt with the matter on 04.11.2020 and the representation came to be rejected on 06.11.2020. It is seen that in between 23.10.2020 and 04.11.2020, there was a delay of 12 days, after excluding the Government Holidays of 4 days, there was a delay of 8 days in considering the petitioner's representation.

6. At this juncture, it is useful to refer the decision of the Honourable Apex Court in the case of Rajammal vs. State of Tamil Nadu and another, reported in 1999 (1) SCC 417, wherein the Apex Court has observed and held that it is for the Authority concerned to explain the delay, if any, in disposal of the representation and if any delay was caused on account of nay indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner.

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7. In the case on hand, as stated supra, the delay of 8 days in considering the representation of the petitioner remains unexplained by the respondents. Hence, in our considered view, the detention order is liable to be set aside solely on the ground of delay by following the decision of the Honourable Apex Court referred supra.

8. In fine, the Habeas Corpus Petition is allowed. The detention order in Detention Order No.36/2020, dated 12.08.2020, passed by the second respondent, is set aside. Consequently, the detenu, namely, Tmt.Eswari @ Mareeswari, wife of Late.Kalaiselvam, aged about 47/2020 years, who is now detained at Special Prison for Women, Madurai, is directed to be released forthwith unless her presence or custody or detention is required in connection with any other case.

Sd/- Assistant Registrar (P&A) // True Copy // / /2021 Sub Assistant Registrar(CS) Ns Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To:

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

2.The Joint Secretary to Government, Public (Law & Order) Fort St. George, Chennai-9 3.The District Collector, Theni District, Theni.

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4.The Superintendent, Special Prison for Women, Madurai.

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

+1 CC to Mr.R.SHANKAR GANESH,Advocate ( SR-2689[F] dated 01/02/2021 ) ORDER MADE IN 29.01.2021 VB (10.02.2021) 4P 7C 4/4