Rashitha v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.04.2022

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR Rashitha ... Petitioner/Wife of the Detenue Vs.

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, 2.The District Magistrate and District Collector, Velunachiar Valagam, Dindigul - 624 004.

3.The Superintendent of Prison, Central Prison, Madurai.

4.The Inspector of Police, Vedasanthur Police Station, Dindigul District.

...Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the entire records connected with the Detention Order in Detention Order No.59/2021 dated 05.09.2021 on the file of the second respondent and quash the same as illegal and direct the respondents to produce the body or person of the petitioner's husband namely, Abdul Rafeek, S/o.Abdul Ajeez, aged about 42 years, now confined at Central Prison, Madurai, before this Court and set him at liberty forthwith. For Petitioner : Mr.S.M.A.Jinnah For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor.

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O R D E R

R.SUBRAMANIAN, J.

AND N.SATHISH KUMAR, J.

The petitioner is the wife of the detenu, namely, Abdul Rafeek, S/o.Abdul Ajeez, aged about 42 years. The detenu has been detained by the second respondent by his proceedings in Detention Order No.59/2021 dated 05.09.2021, holding him to be a "Drug Offender", as contemplated under Section 2(e) 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 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 representations made by the petitioner were not considered on time and there was an inordinate and unexplained delay with regard to the same.

4. The learned Additional Public Prosecutor opposed the Habeas Corpus Petition. 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 05.09.2021. The petitioner made a representation dated 18.09.2021 and the same was received on 21.09.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 21.09.2021 and remarks were received on 18.10.2021, in which, there is a delay of 15 days excluding the Government Holidays of 11 days. Thereafter, the Deputy Secretary has dealt with the representation on 20.10.2021 and Minister for Electricity, Prohibition and Excise has dealt with the representation on 29.10.2021, in which, there is a delay of 7 days excluding the Government Holidays of 2 days. Ultimately, the petitioner's representation was rejected on 29.10.2021. Thus there is a delay of 22 days in considering the representation which remains unexplained.

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6. In Rekha vs. State of Tamil Nadu, reported in 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.

7. In Sumaiya vs. The Secretary to Government, reported in 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.

8. 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.

9. In the subject case, admittedly, there is an unexplained delay of 22 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

10. In the result, the Habeas Corpus Petition is allowed and the order of detention in D.O.No.59/2021 dated 05.09.2021 passed by the second respondent is set aside. The detenu, namely, Abdul Rafeek, S/o.Abdul Ajeez, aged about 42 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar (CO) // True Copy // / /2022 Sub Assistant Registrar(CS) rm 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, Secretariat, 3/4

2.The District Magistrate and District Collector, Velunachiar Valagam, Dindigul - 624 004.

3.The Superintendent of Prison, Central Prison, Madurai.

4.The Inspector of Police, Vedasanthur Police Station, Dindigul District.

5.The Joint Secretary to Government, Public(Law & Order), Fort St. George, 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

H.C.P.(MD)No.1437 of 2021 06.04.2022 MGJ(22.04.2022) 4P 7C 4/4