Alagarsamy @ Alagar @ Alart Alagar v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:09.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE T.RAJA AND THE HONOURABLE MR.JUSTICE B.PUGALENDHI H.C.P.(MD)No.687 of 2019 Alagarsamy @ Alagar @ Alart Alagar : Petitioner Vs 1.The Principal Secretary to Government Home, Prohibition & Excise Department, Secretariat, Chennai-09.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai District.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
: Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the entire records connected with the detention order of the respondent No.2 in order No.39/BCDFGISSSV/2019 dated 12.07.2019 and quash the same and direct the respondents to produce the body or person of the detenu by name Alagarsamy @ Alagar @ Alart Alagar, S/o.Sundaram, Male aged about 29 years, now confining at Central Prison, Madurai before this Court and set him at liberty.
For Petitioner : Mr.R.Alagumani For Respondents : Mr.K.Dinesh Babu Addl.Public Prosecutor
O R D E R
[Order of the Court was made by T.RAJA, J.] One Alagarsamy @ Alagar @ Alart Alagar having suffered the impugned detention order, dated 12.07.2019 passed by the second respondent in order No.39/BCDFGISSSV/2019, challenging the correctness of the order, has approached this Court by way of filing this Habeas Corpus Petition.
2.Mr.R.Alagumani,learned counsel for the petitioner, assailing the impugned detention order, pleaded that the petitioner is facing one ground case registered, in Cr.No.251/2019 under
Sections 147, 148, 294(b), 302, 307, 506(ii) I.P.C, by V2 Avaniapuram Police Station, dated 06.03.2019. Again, he is facing yet another adverse case registered by the Palamedu Police Station in Cr.No.34/2019, under Sections 147, 148, 341, 353, 307 I.P.C r/w 5 and 25(1-A) of Arms Act, 1959. Further, he complained before us that even after dismissal of the three bail applications, there is no need and necessity for the detaining authority to detain the detenu under the Tamil Nadu Act, 14, branding him as 'Goonda'. 3.It was again canvassed that after the dismissal of three bail petitions, the petitioner has sent a representation to the respondents 1 & 2 on 19.07.2019. Although the same was received on 26.07.2019 by the respondents, without even considering the genuine case of the petitioner, they rejected the same on 19.08.2019.
But, till date, the huge inordinate day of 24 days has not been explained by the respondents. Even in the counter affidavit filed by the second respondent, the huge delay of 24 days in considering the representation of the petitioner has not been explained. Hence, according to the learned counsel, on the sole ground of delay, the impugned order stands vitiated and therefore, the present petition deserves to be allowed and a direction may be issued to the respondents to release the detenu.
4.A detailed counter affidavit has been filed by the second respondent. Even after producing a proforma, learned Additional Public Prosecutor has attempted to justify the unexpected delay to the effect that from the date of representation i.e 19.07.2019, remarks relating to the representation made on behalf of the detenu had been called for on 26.07.2019 and the same had been received on the same day. Thereafter, the Office of the first respondent dealt with the representation on 14.08.2019, thereafter, the same was rejected on 16.08.2019. As such, there has been a delay of 24 days. Between 26.07.2019 and 16.08.2019, there are 8 intervening holidays. Thus, there has been an actual delay of 16 days. 5.We are unable to accept the reason given by the learned Additional Public Prosecutor.
6.In support of his contentions, the learned counsel appearing for the petitioner had relied on the decision of this Court, in Sumaiya Vs The Secretary to Government, reported in 2007 (2) MWN (Cri.) 145, (DB), to state that even a delay of three days in considering the representation is fatal to the detention order passed by the Detaining Authority concerned. He had further submitted that the unexplained delay caused in considering the representation would vitiate the detention order passed by the Detaining Authority.
7.The learned counsel has also relied upon a decision, in Venkatesan @ Maya Venkatesan (2007(1) MLJ (Crl.) 1176), it has been held as follows:
"10..... thus it is clear that the Government is bound to
explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. The test is not the duration or range of delay, but how it is explained by the Authority concerned. In this case, as pointed out above, there is absolutely no explanation for the delay of four days. It is a constitutional obligation to consider the representation forwarded by the detenu without any delay, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Hence, on this ground also the order of detention is liable to be quashed."
8.In Kalaiselvi.G. Vs. The State of Tamil Nadu (2007(5) CTC 657), a Full Bench of this Court had held as follows: "26.The last contention is relating to delay in disposal of the representation. It is by now well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity of making representation and such right of the detenu obviously encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay and the result of such representation should also be communicated without unnecessary delay. This position is apparent from several decisions of the Supreme Court, including the decision Usha Agarwal vs. Union of India and others (2007 (1) SCC 295), wherein, after referring to the Constitution Bench decision of the Supreme Court in Kamleshkumar Ishwandas Patel vs. Union of India, (1995) 4 SCC 51, it was observed:
This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention."
9. In Rekha Vs. State of Tamilnadu (2011(5) SCC 244), it has been held that the personal liberty of a person is protected, under Article 21 of the Constitution of India. As it is so sacrosanct and so high in the scale of constitutional values, there is an obligation on the part of the Detaining Authority to show that, while passing the impugned order of detention, the procedures established by law have been meticulously followed. The procedural safe guards 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 the present case, the delay caused in the disposal of the representation, dated 19.07.2019, made on behalf of the detenu, has not been properly explained by the respondents, either in the counter affidavit filed on their behalf, or in the oral submissions
made by the learned Additional Public Prosecutor, appearing on behalf of the respondents. In such circumstances, in view of the decisions cited supra, this Court is of the view that there is no proper justification on the part of the respondents for causing 16 long days delay. As the delay has not been sufficiently explained, we hold that the action of the respondent violates Article 22(5) of the Constitution of India. In view of the above facts and circumstances of the case, we have no other option except to allow this petition.
11.Accordingly, this petition is allowed. Consequently, the impugned detention order passed by the second respondent in 39/BCDFGISSSV/2019 dated 12.07.2019 is set aside and the detenu Alagarsamy @ Alagar @ Alart Alagar, S/o.Sundaram, Male aged about 29 years, who is detained at Central Prison, Madurai is set at liberty. The Superintendent of Central Prison, Madurai/third respondent is directed to release him forthwith, unless his presence is required in connection with any other case.
Sd/- Assistant Registrar (CO) // True Copy // / /2020 Sub Assistant Registrar(CS) To 1.The Principal Secretary to Government Home, Prohibition & Excise Department, Secretariat, Chennai-09.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai District. 3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4. The Joint Secretary to Government, Public (Law & Orders), Fort St.George, Chennai. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
H.C.P.(MD)No.687 of 2019 09.01.2020 vs SDS(03.02.2020) 4P-6C