Allowed

Vanmathi (F/25) v. the Secretary to Government

Madras HC13 Dec 2017HCP/1657/2017

Case brief

AI extract

What is this about?

This Court allowed a writ petition under Article 226 for Habeas Corpus. The Court quashed a detention order held to be a violation of procedural safeguards due to unexplained delays by the detaining authority and the Government in considering the petitioner's representation, under the Tamil Nadu Preventive Detention Act.

What did the court decide?

The detention order No.495/BCDFGISSSV/2017 dated 18.08.2017 was quashed and the detenu was directed to be released forthwith unless required in another case.

Vanmathi (F/25) Vs the Secretary to Government — Writ and Judicial Review | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 13.12.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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H.C.P.No.1657 of 2017

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Vanmathi ... Petitioner
-vs-
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The Commissioner of Police,
Chennai,
Office of the Commissioner of Police (Goondas Section),
Vepery, Chennai – 600 007.
3.The Superintendent of Prison,
Central Prison,
Puzhal, Chennai. ... Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the entire records connected with the detention order of the 2^nd respondent in No.495/BCDFGISSSV/2017 dated 18.08.2017 and quash the same and direct the respondents to produce the body and person of the petitioner's husband namely Manikandan @ Kundumani, son of Murugan, aged about 22 years detained in Central Prison, Puzhal, Chennai, before this Court and set him at liberty.

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For Petitioner : Mr.S.Mohamed Ansar

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[Order of the Court was made by N.SATHISH KUMAR, J.]

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The petitioner is the Wife of the detenu, namely, Thiru.Manikandan @ Kundumani, S/o.Murugan, Male, aged about 22

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

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years. The detenu has been detained by the 2^nd respondent by his order in No.495/BCDFGISSSV/2017, dated 18.08.2017 holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

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2.We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

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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 in time and there was an inordinate and unexplained delay with regard to the same.

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4.Notice in this petition was issued on 06.09.2017, despite which, no counter affidavit has been filed by the State.

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5.The learned Additional Public Prosecutor opposed the Habeas Corpus Petition. 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.

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6.The Detention Order in question was passed on 18.08.2017. The petitioner made a representation, dated 02.09.2017 and the same were received on 05.09.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day, i.e., on 05.09.2017. The remarks were duly received on 12.09.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 03.10.2017.

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7.It is the contention of the petitioner that there was a delay of 6 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was a delay of 4 days in submitting the remarks. Thereafter, there was another delay of 15 days in considering the representation, of which 4 days were Government Holidays, hence, there was another delay of 11 days in considering the representation.

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8.In Rekha vs. State of Tamil Nadu, reported in 2011 (5)

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

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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.

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9.In Sumaiya vs. The Secretary to Government, reported in 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.

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10.In Tara Chand vs. State of Anbazhagansthan 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.

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11.In the subject case, admittedly, there is an unexplained delay of 4 days in submitting the remarks by the Detaining Authority and 11 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

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12.In the result, the Habeas Corpus Petition is allowed and the order of detention in No.495/BCDFGISSSV/2017, dated 18.08.2017 passed by the 2^nd respondent is set aside. The detenu, namely, Thiru.Manikandan @ Kundumani, S/o.Murugan, Male, aged about 22 years, is directed to be released forthwith unless his detention is required in connection with any other case. Given the nature of the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.

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Sd/Deputy Registrar

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//True Copy//

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Sub Assistant Registrar

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pam

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To:

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