Allowed

Mrs.S.Priya v. the State of Tamil Nadu Rep by

Madras HC18 Mar 2016HCP/2560/2015

Case brief

AI extract

What is this about?

This habeas corpus petition challenged the detention of the petitioner's husband under the TN Goondas Act due to an unexplained six-day delay by authorities in finalizing his bail representation. The High Court held that unexplained delay violates Article 22(5) and quashed the detention order.

What did the court decide?

The detention order dated 4.9.2015 is quashed. The detenu is directed to be set at liberty forthwith.

Mrs.S.Priya Vs the State of Tamil Nadu Rep by — Criminal Trial and Appeal | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 18.3.2016

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CORAM

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THE HONOURABLE MR.JUSTICE M.JAICHANDREN

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and

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THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

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H.C.P.No.2560 of 2015

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S.Priya .. Petitioner
Vs.

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The State of Tamil Nadu rep by its Secretary to the Government Prohibition & Excise XII Department St. George Fort, Chennai – 600 009 2. The Commissioner of Police Chennai Police, Office of the Commissioner Police (Goondas SectionA), Vepery, Chennai .. Respondents

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Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus directing the respondents to produce the body of the detenu Saravanan, s/o.Mani Goonda who is detained in the Central Prison, Puzhal, before this Court and to pass an order to call for the records of detention order imposed on the petitioner's husband in the detention order No.857/BCDFGISSVI/2015 dated 4.9.2015 respondent and set aside the same and set the detenu at liberty.

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For Petitioner : Mr.K.Pasupathy For Respondents : Mr.A.N.Thambi Durai Addl. Public Prosecutor O R D E R

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[Order of the Court was made by M.JAICHANDREN, J.]

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This Habeas Corpus Petition has been filed by the wife of the detenu, namely, Saravanan, aged 28 years, son of Mani, to issue a Writ of Habeas Corpus, to call for the records in

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https://hcservices.ecourts.gov.in/hcservices/

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detention order No.857/BCDFGISSVI/2015 dated 4.9.2015, passed by the 2nd respondent, detaining the detenu, under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982), branding him as a “Goonda”, and to quash the same and to direct the respondents to produce the body and person of the detenu and set him at liberty.

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Even though the learned counsel for the petitioner raised many grounds in assailing the impugned order of detention in the petition, he confined his arguments only to the ground of delay in considering the representation of the detenu. According to the learned counsel for the petitioner, the representation dated 25.9.2015 made on behalf of the petitioner had been dealt with by the Under Secretary, on 14.10.2015. Thereafter, it had been dealt with by the Minister for (Electricity and Prohibition and Excise) only, on 27.10.2015. Thus, it is clear that there has been an inordinate delay of 13 days in disposing of the said representation. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 7 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 6 days, which remains unexplained. The unexplained delay in considering the representation of the detenu vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Rajammal Vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.

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Resisting the contention of the learned counsel for the petitioner, the learned Additional Public Prosecutor had submitted that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. The learned Additional Public Prosecutor had further submitted that there was no deliberate delay on the part of the authorities concerned to consider and dispose of the representation of the detenu. It is contended that such a delay is not fatal to the impugned detention order, as the authorities concerned are dealing with the file right from the date of receipt of the representation and therefore, he prayed for dismissal of the petition.

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We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.

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5.As per the Proforma submitted by the learned Additional Public Prosecutor, the representation dated 25.9.2015 made on behalf of the petitioner had been dealt with by the Under Secretary, on 14.10.2015. Thereafter, it had been dealt with by the Minister for (Electricity and Prohibition and Excise) only, on 27.10.2015. From the above, it is clear that in between 14.10.2015 and 27.10.2015, [i.e., the intermittent days between the representation dealt with by the Under Secretary and the representation dealt with by the Minister for (Electricity and Prohibition and Excise], there is a delay of 13 days. Even if we give concession to the 7 intervening holidays including Government holidays, namely, 17.10.2015, 18.10.2015, 21.10.2015, 22.10.2015, 23.10.2015, 24.10.2015 and 25.10.2015, still there is a delay of 6 days, which remain unexplained.

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6.It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of 6 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.

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7.In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows:

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"It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest."

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8.As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here 6 days delay has not been properly explained at all.

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9.Further, in a recent decision in Ummu Sabeena vs. State of Kerala - 2011 STPL (Web) 999 SC, the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of

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India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

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10.In the light of the above fact and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the detenu.

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Accordingly, the habeas corpus petition is allowed and the detention order dated 4.9.2015, passed by the 2^nd respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case.

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Sd/-
Assistant Registrar(J)
//True Copy//
Sub Assistant Registrar
To
1. The Secretary to the Government
The State of Tamil Nadu
Prohibition & Excise XII Department
St. George Fort,
Chennai – 600 009
2. The Commissioner of Police
Chennai Police, Office of the Commissioner Police
(Goondas SectionA), Vepery,
Chennai
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent,
Central Prison, Puzhal, Chennai.
5.The Joint Secretary to Government,
Public (Law & Order)
Fort Saint George, Chennai 9.
H.C.P.No.2560 of 2015
mg co
kra 12.04.2016

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https://hcservices.ecourts.gov.in/hcservices/

Mrs.S.Priya v. the State of Tamil Nadu Rep by

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Mrs.S.Priya v. the State of Tamil Nadu Rep by

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