J.Sahaya Monika v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.10.2022

CORAM

THE HON'BLE MRS JUSTICE J. NISHA BANU AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.1500 of 2022 J.Sahaya Monika ... Petitioner / Wife of Detenue /Vs./ 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The District Collector and District Magistrate, Kanniyakumari Collector Office, Kanniyakumari District at Nagercoil.

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

...Respondents

PRAYER:

Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the entire records in detention passed in P.D.No.01/2022 dated 06.01.2022 on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner husband namely,

S.Jose, S/o.Sunderraj, male aged 27 years, who is detained in Central Prison, Palaiyankottai.

For Petitioner : Mr.NA. Manimaran.

For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor

ORDER

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

The petitioner is the wife of the detenu viz., Jose, S/o.Sunderraj aged about 27 years. The detenu has been detained by the second respondent by his order in Detention Order P.D.No.01/2022 dated 06.01.2022 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 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 other ground raised by the learned counsel appearing for the petitioner is that the arrest intimation was not given to the near relative of the detenue. Hence, the learned counsel submitted that mandatory requirements of informing the arrest was not made to the relative of the detenu and therefore, the detention order is vitiated on that ground also.

5. 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. The learned Additional Public Prosecutor would further submit that the arrest of the detenu has been intimated to the wife of the detenu through SMS.

6. We went through the arrest intimation report and we find that the arrest intimation has been sent through an SMS through one mobile number. Neither the mobile number that has been shown is belonging to the wife of the detenue, nor the signature of the wife has been obtained for having intimated the arrest. In view of the same, there is a statutory violation of passing the detention order and the same can be taken into consideration to interfere with the detention order.

7. The Detention Order in question was passed on 06.01.2022. The petitioner made a representation dated 06.09.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 26.09.2022.

8. It is the contention of the petitioner that there was a delay of 9 days in submitting the file by the Detaining Authority, of which 3 days were Government holidays and hence there was an inordinate delay of 6 days in submitting the file. It is the further contention of the petitioner that the file was received on 19.09.2022 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, 2 days were Government Holidays and hence, there was inordinate delay of 4 days in considering the representation.

9. 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.

10. 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.

11. 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.

12. In the subject case, admittedly, there is an inordinate and unexplained delay of 6 days in submitting the remarks by the Detaining Authority and unexplained delay of 4 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.

13. In the result, the Habeas Corpus Petition is allowed and the order of detention in P.D.No.01/2022 dated 06.01.2022 passed by the second respondent is set aside. The detenu, viz., Jose, S/o.Sunderraj, aged about 27 years, is directed to be released forthwith unless his detention is required in connection with any other case.

(J.N.B.,J.) (N.A.V.,J.) 14.10.2022 Index : Yes/No Internet : Yes ta/Ns To:

1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The District Collector and District Magistrate, Kanniyakumari Collector Office, Kanniyakumari District at Nagercoil.

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

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

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

ta/Ns H.C.P.(MD)No.1500 of 2022 14.10.2022