Allowed

Abdul Khadar v. State of Tamil Nadu Rep by

Madras HC7 Apr 2016HCP/3077/2015

Case brief

AI extract

What is this about?

The High Court allowed a writ petition for habeas corpus. It held that the unexplained seven-day delay in disposing of a detenu's representation under the Tamil Nadu Goondas Act rendered the detention order illegal. Consequently, the detention order was quashed, and the detenu was ordered to be set at liberty.

What did the court decide?

The detention order dated 13.11.2015 is quashed, and the petitioner's son is directed to be set at liberty forthwith.

Abdul Khadar Vs State of Tamil Nadu Rep by — Pension and Retirement Benefits | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 7.4.2016

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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.3077 of 2015

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Abdul Khadar .. Petitioner

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Vs.

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The State of Tamil Nadu rep by its Secretary of State Prohibition & Excise Department

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St. George Fort Chennai – 600 009

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The Commissioner of Police
Poonamallee High Road
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 calling upon the production of the records relating to the detention order dated 13.11.2015 made in detention order Memo No.1189/BCDFGISSSV/2015 passed by the 2^nd respondent herein quash the same and direct the respondents to produce the body or person of the petitioner's son Ahamad Fahat son of Abdul Khadar aged about 27 years branded as Goonda and now confined in Central Prison, Puzhal, Chennai, before this Court and set him at liberty forthwith.

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For Petitioner : Mr.C.Mohan Raj

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For Respondents : Mr.A.N.Thambi Durai

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Addl. Public Prosecutor

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This Habeas Corpus Petition has been filed by the father of the detenu, namely, Ahamad Fahat, aged 27 years, son of Abdul Khadar, to issue a Writ of Habeas Corpus, to call for the records in Memo No.1189/BCDFGISSSV/2015, dated 13.11.2015, passed by the 2nd respondent, detaining the detenu, under

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

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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 made on behalf of the petitioner, dated 25.11.2015 had been dealt with by the Deputy Secretary, on 8.12.2015. Thereafter, it had been dealt with by the Minister for (Electricity and Prohibition and Excise) only, on 17.12.2015. Thus, it is clear that there has been an inordinate delay of 9 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 2 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 7 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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As per the Proforma submitted by the learned Additional

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

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Public Prosecutor, the representation made on behalf of the petitioner, dated 25.11.2015, had been dealt with by the Deputy Secretary, on 8.12.2015. Thereafter, it had been dealt with by the Minister for (Electricity and Prohibition and Excise) only, on 17.12.2015. From the above, it is clear that in between 8.12.2015 and 17.12.2015, [i.e., the intermittent days between the representation dealt with by the Deputy Secretary and the representation dealt with by the Minister for (Electricity and Prohibition and Excise], there is a delay of 9 days. Even if we give concession to the 2 intervening holidays including Government holidays, namely, 12.12.2015 and 13.12.2015, still there is a delay of 7 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 7 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: "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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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 7 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 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

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

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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 13.11.2015, 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(CS-V) //True Copy// Sub Assistant Registrar To: 1. The State of Tamil Nadu rep by its Secretary of State Prohibition & Excise Department St. George Fort Chennai – 600 009

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The Commissioner of Police Poonamallee High Road Vepery, Chennai 3. The Superintendent, Central Prison, Puzhal, Chennai.

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The Joint Secretary to Government Public (Law & Order), Fort St. George, Chennai.

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The Public Prosecutor, High Court, Madras. H.C.P.No.3077 of 2015 kk co kra 23.05.2016

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

Abdul Khadar v. State of Tamil Nadu Rep by

Case brief

What is this about?

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Abdul Khadar v. State of Tamil Nadu Rep by

Case brief

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