Kamal v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.02.2021

CORAM:

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM and THE HONOURABLE MR.JUSTICE G.ILANGOVAN Kamal ... Petitioner/Detenue -vs1.State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9.

2.The District Magistrate and District Collector, O/o.The District Collector and District Magistrate, Tiruchirappalli District, Tiruchirappalli.

3.The Superintendent, Central Prison, Tiruchirappalli, Tiruchirappalli District.

... 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 records relating to the Impugned Order of Detention made in Cr.M.P.No.76 of 2020, dated 30.10.2020 on the file of the District Collector and District Magistrate, Tiruchirappalli, Tiruchirappalli District the second respondent herein, branding the detenu by name Kamal, S/o.Rukman, aged about 40 years, as Drug Offender, who is now confined in Central Prison, Tiruchirappalli, Tiruchirappalli District and quash the impugned order of detention and set him at liberty by producing him before this Court. For Petitioner :

Mr.A.Thiruvadikumar For Respondents :

Mr.K.Dinesh Babu Additional Public Prosecutor 1/4

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, Kamal, son of Rukman, aged about 40 years, challenging the detention order in Cr.M.P.No.76 of 2020, dated 30.10.2020, 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.A.Thiruvadikumar, 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, while reiterating the counter affidavit filed by the second respondent, 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 10.11.2020 and it was received on 19.11.2020. Remarks were called for on the same day i.e., on 19.11.2020 and it was received on 11.12.2020. The Deputy Secretary dealt with the matter on 11.12.2020. 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 11.12.2020 and 09.01.2021, there was a delay of 28 days, after excluding the Government Holidays of 6 days, there was a delay of 22 days in considering the petitioner's representation.

6. At this juncture, it is useful to refer the decision 2/4

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.

7. In the case on hand, as stated supra, the delay of 22 days in considering the representation of the petitioner has not been properly explained 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 Cr.M.P.No.76 of 2020, dated 30.10.2020, passed by the second respondent, is set aside. Consequently, the detenu, namely, Kamal, son of Rukman, aged about 40 years, who is now detained at Central Prison, Tiruchirappalli, is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case.

Sd/- Assistant Registrar (AD II) // True Copy // / /2021 Sub Assistant Registrar(CS) am 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.

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To:

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9.

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

3.The Superintendent, Central Prison, Tiruchirappalli, Tiruchirappalli District.

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

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

03.02.2021 KM (17.02.2021) 4P 6C 4/4