Senkan v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.01.2023

CORAM:

THE HONOURABLE MR.JUSTICE P.N.PRAKASH and THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN H.C.P.(MD)No.1243 of 2022 Senkan .. Petitioner/Detenu Vs.

1.State of Tamil Nadu, Rep. By the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

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

3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

.. 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 second respondent passed in M.H.S.Confdl.No.91/2022 dated 11.06.2022 and quash the same and direct the respondents to produce the body or person of the detenu, by name, Senkan, aged about 21 years, son of Sundram, now detained at Central Prison, Palayamkottai, before this Court and set him at liberty forthwith.

For Petitioner : Mr.N.Pragalathan For Respondents : Mr.S.Ravi Additional Public Prosecutor

O R D E R

P.N.PRAKASH, J.

and DR.G.JAYACHANDRAN, J.

The petitioner is the detenu viz., Senkan, aged about 21 years, son of Sundram. The detenu has been detained by the second respondent by his order in M.H.S.Confdl.No.91/2022 dated 11.06.2022 holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under

challenge in this Habeas Corpus Petition.

2.We have heard the learned Counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing 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 appearing 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 strongly opposed the Habeas Corpus Petition by filing his counter. 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 11.06.2021. The petitioner made a representation on 18.07.2022. The representation was received on 25.07.2022. Therefore, remarks were duly received on 08.08.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 17.08.2022.

6. It is the contention of the petitioner that there was a delay of 13 days in submitting the remarks by the Detaining Authority, of which 5 days were Government Holidays and hence there was an inordinate delay of 8 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 10.08.2022 and there was a delay of 6 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 3 days were Government Holidays, hence, there was inordinate delay of 3 days in considering the representation.

7.In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the Honourable 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, reported in 1980 (2) SCC 321, the Honourable 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 8 days in submitting the remarks by the Detaining Authority and unexplained delay of 3 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition

and Excise Department. The impugned detention order is, therefore, liable to be quashed.

11.In the result, the Habeas Corpus Petition is allowed and the order of detention in M.H.S.Confdl No.91/2022 dated 11.06.2022 passed by the second respondent is set aside. The detenu, viz., Senkan, aged about 21 years, son of Sundram, is directed to be released forthwith unless his detention is required in connection with any other case.

[P.N.P.,J.] & [G.J.,J.] 05.01.2023 Index : Yes/No Internet : Yes/No PJL To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

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

3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

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

P.N.PRAKASH, J.

and DR.G.JAYACHANDRAN, J.

PJL ORDER MADE IN H.C.P.(MD)No.1243 of 2022 05.01.2023