N.Ganesan v. The Principal Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.02.2022

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR N.Ganesan ... Petitioner(The detenu) Vs.

1.The State of Tamil Nadu, represented by its Principal Secretary to Government, Government of Tamil Nadu, Home, Prohibition and Excise Department,Chennai-9.

2.The Commissioner of Police, Madurai City, Madurai.

3.The Superintendent, Central Prison, Madurai.

...Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the records pertaining to the proceedings of the second respondent made in his proceedings in No.22/BCDFGISSSV/2021, dated 5.3.2021 and to quash the same and set the Petitioner by name ''Ganesan, son of Natchiyappan, aged about 20 years at liberty from the third respondent.

For Petitioner : Mr.C.Prithiviraj For Respondents : Mr.A.Thiruvadikumar, Additional Public Prosecutor

O R D E R

R.SUBRAMANIAN, J.

AND N.SATHISH KUMAR, J.

The petitioner is the detenu, namely,N.Ganesan, S/o.Natchiyappan, aged about 20 years. The detenu has been detained by the second respondent by his order in No.22/BCDFGISSSV/2021, dated 5.3.2021, holding him to be a "Goonda", as contemplated under 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 for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

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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 5.3.2021. The petitioner made a representation, dated 17.03.2021 and the same was received on 22.03.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day on 22.03.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 15.04.2021.

Though the representation, dated 17.03.2021 was received on 22.03.2021, it was rejected only on 15.04.2021 with a delay of 9 days,after excluding the Government Holidays of 6 days. The delay in considering the representation remains unexplained. 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.

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9. In the subject case, admittedly, there is an unexplained delay of 9 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 No.22/BCDFGISSSV/2021, dated 5.3.2021, passed by the second respondent is set aside. The detenu, namely, N.Ganesan, S/o.Natchiyappan, aged about 20 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar (Records) // True Copy // / /2022 Sub Assistant Registrar(CS) vsn 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, Government of Tamil Nadu, Home, Prohibition and Excise Department,Chennai-9.

2.The Commissioner of Police, Madurai City, Madurai.

3.The Superintendent, Central Prison, Madurai.

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. ORDER MADE IN H.C.P(MD)No.1629 of 2021 08.02.2022 CK(CO) GC(28.02.2022) 3P 6C 3/3