Kalaiselvi v. The Additional Cheif Sercretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.09.2022

CORAM

THE HON'BLE MRS JUSTICE J. NISHA BANU AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.1863 of 2021 Kalaiselvi ... Petitioner / Wife of Detenue /Vs./ 1.The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.

2.The District Collector and District Magistrate, District Collector's Office, Thanjavur District.

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

...Respondents

PRAYER:

Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the entire records pertaining to the detention order passed by the second respondent in Detention Order made in P.D.No.141/2021 dated 19.11.2021 in detaining the detenue under Section 2(ggg) of the Tamilnadu Act 14 of 1982 as a Sexual Offender and quash the same and direct the respondents to produce Detenue namely Ravi

@ Kumaresan, S/o.Karuppaian, Male, aged about 54 years, detained at Central Prison, Trichy, before this Court and set him of liberty forthwith. For Petitioner : Mr.A.Arun Prasad 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., Ravi @ Kumaresan, S/o.Karuppaian aged about 54 years. The detenu has been detained by the second respondent by his order in Detention Order P.D.No.141/2021 dated 19.11.2021 holding him to be a "Sexual Offender", as contemplated under Section 2(ggg) 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 son of the detenu through SMS.

6. The learned Additional Public Prosecutor, on instructions, submitted that the investigation was completed and final report was filed and it was taken on file by the Special Court for POCSO Act cases, Tanjore, in Spl.S.C.No.41 of 2022 and the case is now at the stage of framing of charges. He further submitted that the detenu had filed discharge petition and the same was withdrawn by him on 26.09.2022.

7. 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 son of the detenue, nor the signature of the son 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.

8. The Detention Order in question was passed on 19.11.2021. The petitioner made a representation dated 06.12.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 10.12.2021. The remarks were duly received on 22.12.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 03.01.2022.

9. It is the contention of the petitioner that there was a delay of 11 days in submitting the remarks by the Detaining Authority, of which 4 days were Government holidays and hence, there was an inordinate delay of 7 days in submitting the remarks.

10. 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.

11. 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.

12. 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.

13. In the subject case, admittedly, there is an inordinate and unexplained delay of 7 days in submitting the remarks by the Detaining Authority. The impugned detention order is, therefore, liable to be quashed.

14. In the result, the Habeas Corpus Petition is allowed and the order of detention in P.D.No.141/2021 dated 19.11.2021 passed by the second respondent is set aside. The detenu, viz., Ravi @ Kumaresan,

S/o.Karuppaian, aged about 54 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.) 30.09.2022 Index : Yes/No Internet : Yes sm To:

1.The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.

2.The District Collector and District Magistrate, District Collector's Office, Thanjavur District.

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

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

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

sm H.C.P.(MD)No.1863 of 2021 30.09.2022