Allowed

Bhuvaneshwari v. State Rep. by

Madras HC1 Aug 2016HCP/3136/2015

Case brief

AI extract

What is this about?

The High Court allowed a habeas corpus petition filed by a mother seeking the release of her son detained under the Tamil Nadu Act 14 of 1982. It quashed the detention order and directed release, holding that an unexplained 10-day delay in considering the detainee's representation violated Article 22(5) and rendered detention illegal.

What did the court decide?

The detention order dated 30.10.2015 is quashed, and the detenu is directed to be set at liberty forthwith unless required in another case.

Bhuvaneshwari Vs State 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: 01.08.2016

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Coram:

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THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

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and

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THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN

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H.C.P.No.3136 of 2015

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Bhuvaneshwari .. Petitioner/Mother of the detenue

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vs.

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1.The State of Tamil Nadu rep. by its Secretary of State Prohibition and Excise Department, St.George Fort, Chennai-600 009.

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2.The Commissioner of Police, City Police Office Campus, Coimbatore District. .. Respondents

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Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus, calling for the records relating to the detention order dated 30.10.2015 made in detention order Memo C. No.54/G/IS/2025 passed by the 2^nd respondent herein quash the same and direct the respondent herein quash the same and direct the respondents to produce the body or person of the petitioner's son Ramakrishnan @ Ramu Son of Rajendran aged about 24 years branded as Goonda and now confined in Central Prison, Coimbatore, before this Hon'ble court and set him at liberty.

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For petitioner : M/S.A.Charles

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For Respondents : Mr.A.N.Thambi Durai, 1 and 2 Addl. Public Prosecutor (Crl.side) O R D E R (Order of the Court was made by S.NAGAMUTHU, J.)

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The petitioner is the mother of the detenu. The detenu has been branded as a "Goonda" under the Tamil Nadu Act 14 of 1982 and detained under the order of the 2nd respondent passed in No.C. No.54/G/IS/2015 dated 30.10.2015.

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

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Even though the petitioner has raised many grounds in assailing the impugned order of detention in the petition, the learned counsel 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 of the detenu, has been received by the Government on 22.04.2016 and remarks have been called for from the detaining authority on 25.04.2016. However, the remarks have been received by the Government only on 09.05.2016, after a delay of 14 days. He adds that the file was dealt with by the Minister concerned on 18.05.2016 and the rejection letter was communicated to the detenu on 23.05.2016. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 4 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 10 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 appearing for the respondents 1 and 2 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 Public Prosecutor, the representation of the detenu was received by the Government on 22.04.2016 and remarks have been called for from the detaining authority on 25.04.2016. However, remarks have been received by the Government only on 09.05.2016, i.e., after a delay of 14 days and the case of the detenu was dealt with by the Minister concerned on 18.05.2016 and the same was rejected on 19.05.2016. From the above, it is clear that in between 25.04.2016 and 09.05.2016, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 14 days. Even if we give concession to the

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

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4 intervening holidays including Government holidays, namely 30.04.2016 , 01.05.2016 , 07.05.2016 and 08.05.2016, still there is a delay of 10 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 10 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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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 10 days delay has not been properly explained at all.

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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 urgency and without any avoidable delay.

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

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Accordingly, the habeas corpus petition is allowed and the detention order dated 30.10.2015, 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 VII)

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//True Copy//

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Sub Assistant Registrar
kua
To:
1.The Secretary to State of Tamil Nadu
Home Prohibition and Excise Department,
St.George Fort, Chennai-600 009.
2.The Commissioner of Police,
City Police Office Campus,
Coimbatore District.
3.The Superintendent of Prison,
Central Prison,Coimbatore.
4. The Joint Secretary to Government,
Public (Law and Order),
Fort St. George, Chennai.
5.The Public Prosecutor, High Court, Madras.
H.C.P.No.3136 of 2015
MSM(CO)
EU 1.09.16

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

Bhuvaneshwari v. State Rep. by

Case brief

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Bhuvaneshwari v. State Rep. by

Case brief

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