Sabur Nisha.S v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.07.2023

CORAM

THE HON'BLE MR JUSTICE M.S.RAMESH AND THE HON'BLE MR JUSTICE M.NIRMAL KUMAR H.C.P.(MD)No.1503 of 2022 S.Sabur Nisha .. Petitioner/Wife of the Detenu Vs.

1.State of Tamil Nadu Represented by the Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai.

2.The District Magistrate-cum-District Collector, O/o.the District Magistrate-cum-District Collector, Tenkasi District.

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

4.The Inspector of Police, Tenkasi Police Station, Tenkasi District.

.. 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 in M.H.S.Confdl.No.77 of 2022, dated 17.08.2022, on the file of Respondent No.2, quash the same as illegal and direct the respondents to produce the body or person of the petitioner's husband namely, Seydsulaiman, aged about 39 years, son of Abulhassan, now confined at Central Prison, Palayamkottai, before this Court and set him at liberty forthwith.

For Petitioner : Mr.S.M.A.Jinnah For Respondents : Mr.A.Thiruvadikumar Additional Public Prosecutor

ORDER

(Order of the Court was made by M.S.RAMESH, J.) The petitioner is the wife of the detenu viz., Seydsulaiman, S/o.Abulhassan, aged about 39 years. The detenu has been detained by the second respondent by his order in M.H.S.Confdl.No.77/2022, dated 17.08.2022, holding him to be a "Goonda", as contemplated under Section 2(f) of the 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 affidavit. 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. In this case, the Detention Order in question was passed on 17.08.2022. The petitioner made a representation dated 30.08.2022 and the same was received on 05.09.2022. The remarks were called for by the

Government from the Detaining Authority and the same were duly received. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 21.09.2022 and the same has been served on the detenu on 27.09.2022. It is the contention of the petitioner that there was delay of 13 days in considering the representation of the petitioner.

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 13 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.77/2022, dated 17.08.2022, passed by the second respondent is set aside. The detenu, viz., Seydsulaiman, S/o.Abulhassan, aged about 39 years, is directed to be released forthwith unless his detention is required in connection with any other case. NCC : Yes / No (M.S.R., J.) (M.N.K., J.) Index : Yes / No 06.07.2023 Lm/smn2

To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai.

2.The District Magistrate-cum-District Collector, O/o.the District Magistrate-cum-District Collector, Tenkasi District.

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

4.The Inspector of Police, Tenkasi Police Station, Tenkasi District.

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

M.S.RAMESH, J.

and M.NIRMAL KUMAR, J.

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