Dhanalakshmi v. The Additional Chief 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.1970 of 2021 Dhanalakshmi

...Petitioner/mother of the detenue

Vs.

1.The Government of Tamil Nadu, Represented by its Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600009

2. The District Collector and District Magistrate, Karur District, Karur.

3. The Superintendent, Central Prison, Tiruchirappalli, Tiruchirappalli District.

...Respondents

PRAYER:

Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the order dated 03/12/2021 made

in Cr.M.P.No.27 of 2021 on the file of the second respondent and quash same and consequently direct the respondents to produce the petitioner's son namely Prasanth, son of Maharaja, aged about 27 years, who is now detained at Central Prison, Tiruchirappalli or his corpus or body, before this Court and set him at liberty forthwith.

For Petitioner : Mr.A.Joseph Jerry For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor

ORDER

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

The petitioner is the mother of the detenu viz., Prasanth, son of Maharaja, aged about 27 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No.27 of 2021 dated 03/12/2021 holding him to be a "Cyber Law Offender", as contemplated under Section 2(bb) 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 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.

5. 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 Judicial Magistrate No.II, Karur in C.C.No. 559 of 2022. It was further submitted that the case stands posted for hearing on 18.10.2022.

6. The Detention Order in question was passed on 03.12.2021. The petitioner made a representation dated 17.12.2021. The remarks were called for by the Government from the Detaining Authority on 23.12.2021. The remarks were duly received on 29.12.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 18.04.2022.

7. It is the contention of the petitioner that the remarks were received on 29.12.2021 and there was a delay of 108 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, 55 days were Government Holidays and hence, there was inordinate delay of 53 days in considering the representation.

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.

9. 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. 10.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. 11.In the subject case, admittedly, there is an inordinate and unexplained delay of 53 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.

12. In the result, the Habeas Corpus Petition is allowed and the order of detention in Cr.M.P.No.27 of 2021 dated 03/12/2021 passed by the second respondent is set aside. The detenu, viz. Prasanth, son of Maharaja, 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 PJL To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600009.

2. The District Collector and District Magistrate, Karur District, Karur.

3. The Superintendent, Central Prison, Tiruchirappalli, Tiruchirappalli District.

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

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

PJL H.C.P.(MD)No.1970 of 2021 14.10.2022