Perumayee v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM and THE HONOURABLE MR.JUSTICE G.ILANGOVAN Perumayee ... Petitioner/Detenu -vs1.The Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.
3.The Superintendent of Prison, Special Prison for Women, Madurai District.
... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India, to issue a writ of habeas corpus calling for the entire records, connected with the detention order of the Respondent No.2 in No.56/BCDFGISSSV/2020, dated 27.10.2020 and quash the same and direct the respondents to produce the body or person of the detenu by name Perumayee, wife of Gunasekaran, aged about 48 years, now detained as "Drug Offender" at Madurai Central Prison before this Court and set her at liberty forthwith.
For Petitioner :
Mr.R.Alagumani For Respondents :
Mr.R.Anandharaj 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 detenu, namely, Perumayee, wife of Gunasekaran, aged about 48 years, against the detention order No.56/BCDFGISSSV/2020, dated 27.10.2020, 1/5
passed by the second respondent, branding him as "Drug Offender" as contemplated under Section 2(e) of Tamil Nadu Act, 14 of 1982. 2.
Mr.R.Alagumani, learned counsel appearing for the petitioner would argue that the detenue is a lady aged about 48 years and she has been falsely roped in the ground case. It is further contended that there are two accused in the ground case, the detenue has been arrayed as A2 and the first accused was arrested and released on bail as no detention order was passed against the first accused. 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. Per contra, Mr.R.Anandharaj, learned Additional Public Prosecutor, while reiterating the counter affidavit filed by the second respondent, would argue that though this detention order has been passed on solitary case, during the investigation it came to light that the detenue has involved in 11 similar cases of this nature. According to the learned Additional Public Prosecutor, the detention order was rightly passed by the detaining authority taking note of the antecedents of the detenue and relevant materials placed by the Sponsoring Authority to prevent the detenu from indulging in similar activities in future. He would further state that there is no illegality or irregularity warranting interference of this Court. It is further submitted that the delay in disposal of the representation has not caused any prejudice to the detenu and hence, prayed for dismissal of the habeas corpus petition.
4. We have heard the rival submissions and perused the materials placed on record.
5. In the instant case, it is an admitted fact that there are totally two (2) accused, however, detention order has been passed only as against the detenue, when the other accused -A1 is also placed in same footing. In Chandra v. The Secretary to Government [2010 (1) MWN (Cr.) 129], it has been held that the Authorities cannot exercise their power arbitrarily for picking and choosing only some of the accused to clamp the order of detention. The relevant paragraph would run thus:
"10. It is the further contention raised on behalf of the petitioners that the equal protection clause shall be attracted against the orders of preventive detention as well. But, this court is of the considered view that the equal protection clause cannot be stretched further to be made applicable for quashing the orders of detention for not assigning reasons in the grounds of detention for 2/5
the exclusion of others and selection of the detenus alone when the detaining authority choses the persons among the accused in the ground case to be clamped with the order of detention under the preventive detention law. However, we are of the view that there is some force in the contention that the exercise of power by the detaining authority to pass orders of detention against the detenus concerned in these HCPs alone can be challenged as being arbitrary.
The arbitrariness pointed out on behalf of the petitioners is that though the detaining authority chose to consider the detenus concerned in these HCPs alone as a class out of the nine accused persons, who were arraigned as such in the first and third adverse cases and the ground case, there was no reasonable basis for such a classification to treat them differently from the rest of the persons. The said argument has been advanced on the ground that no reason has been assigned in the grounds of detention for selecting the above said three persons alone for being termed as goondas. We are of the considered view that it shall not be necessary on the part of the detaining authority to assign any reason in the grounds of detention as to why the other persons are not chosen for being detained under the preventive detention law.
Suffice to state the satisfaction that the detenus are to be termed goondas and their presence at large will be detrimental to the maintenance of public order. But the same does not mean that the court while dealing with HCP challenging the order of detention, cannot go into the question of arbitrariness in such classification. When the order of detention is challenged on the ground of arbitrariness based on the classification of the detenus alone from the rest of the accused, it shall be the duty of the detaining authority and the State to establish reasonable basis of such classification to rule out arbitrariness.
In this case, though the detaining authority cannot be found fault with for not assigning reason in the grounds of detention for selecting the detenus concerned in these HCPs alone for clamping the orders of detention leaving out the other accused in the ground case and the adverse cases, there is failure on the part of the respondents herein to state the basis of such classification atleast before the court in these HCPs.
petitions as to why the detenus alone were selected for detention as goondas leaving out the other six persons will show that the exercise of the statutory power by the detaining authority was arbitrary especially when the left out persons were placed on equal footing with Murugan and Murali, the detenus concerned in H.C.P.Nos.2393 and 2404 of 2009 and found implicated in more number of cases than Rajendran, the detenu concerned in H.C.P.No.2405 of 2009. Hence we are convinced that orders of detention challenged in these HCPs are vitiated on the ground of arbitrariness."
In this case also, no explanation has been given by the respondents for passing the detention order only against some of the accused.
6. Further, it is seen from the proforma furnished by the learned Additional Public Prosecutor that the representation of the petitioner, dated 02.11.2020, was received on 02.12.2020. Remarks were called for on 02.12.2020 and it was received on 10.12.2020. The Deputy Secretary dealt with the matter on 10.12.2020. The concerned Minister dealt with the matter on 09.01.2021 and the representation came to be rejected on 11.01.2021. It is seen that in between 10.12.2020 and 09.01.2021, there was a delay of 30 days, after excluding the Government Holidays of 7 days, there was a delay of 23 days in considering the petitioner's representation.
7. 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.
8. In the case on hand, as stated supra, the delay of 23 days has not been properly explained by the respondents. Hence, in our considered view, the detention order is liable to be set aside on the grounds as stated above by following the decisions cited supra.
9. In fine, the Habeas Corpus Petition is allowed. The order of detention No.56/BCDFGISSSV/2020, dated 27.10.2020, passed by the second respondent, is set aside. Consequently, the detenu, namely, Perumayee, wife of Gunasekaran, aged about 48 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 4/5
required in connection with any other case.
Sd/- Assistant Registrar (CS-III) // True Copy // / /2021 Sub Assistant Registrar(CS) 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 Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.
3.The Superintendent of Prison, Special Prison for Women, Madurai District.
4. The Joint Secretary to Government Public (Law Order) Fort St.George, Chennai-9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
10.03.2021 CN(17.05.2021) 5P 6C 5/5