Allowed

I.Kala F/a 29 Years, v. the Secretary to the

Madras HC20 Dec 2017HCP/1732/2017

Case brief

AI extract

What is this about?

This is a Habeas Corpus petition challenging a detention order passed against the petitioner's husband under the Tamil Nadu Act 14 of 1982. The Court held that unexplained delays in considering the representation rendered the detention illegal and quashed the order.

What did the court decide?

The order of detention dated 28.08.2017 is set aside and the detenu is directed to be released forthwith unless detention is required in connection with any other case.

I.Kala F/a 29 Years, Vs the Secretary… — Constitutional and Fundamental Rights | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 20.12.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER

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and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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H.C.P.No.1732 of 2017

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I.Kala ... Petitioner

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-Vs-

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1.The Secretary to Government, Department of Prohibition and Excise (Home), Fort St. George,

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Chennai-600 009.

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The District Collector and District Magistrate, Cuddalore District, Cuddalore. ... 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 records in connection with the order of detention passed by the second respondent dated 28.08.2017 in C3/D.O.51/2017 against the petitioner's husband Iyyappan, son of Mani, aged about 35 years, who is confined at Central Prison, Cuddalore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

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For Petitioner : Mr.V.Paarthiban

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For Respondents: Mr.V.M.R.Rajentran Additional Public Prosecutor

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O R D E R

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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.Iyyappan, S/o.Mani, Male, aged about 35 years. The detenu has been detained by the 2^nd respondent by his order in C3/D.O.51/2017 dated 28.08.2017 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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https://hcservices.ecourts.gov.in/hcservices/

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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 unexplained delay with regard to the same.

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4.Notice in this petition was issued on 15.09.2017, despite which, no counter affidavit has been filed by the State. However, 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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5.The Detention Order in question was passed on 28.08.2017. The petitioner made a representation, dated 03.09.2017 the same was received on 12.09.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on the same day, i.e., on 12.09.2017. The remarks were duly received on 04.10.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 11.10.2017.

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6.It is the contention of the petitioner that there was an inordinate and unexplained delay of 22 days in submitting the remarks by the Detaining Authority, of which 8 days were Government Holidays and hence there was an unexplained delay of 14 days in submitting the remarks. Thereafter, there was another unexplained delay of 7 days in considering the representation.

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7.In Rekha vs. State of Tamil Nadu, reported in 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.

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

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8.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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9.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.

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10.In the subject case, admittedly, there is an unexplained delay of 14 days in submitting the remarks by the Detaining Authority and 7 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

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11.In the result, the Habeas Corpus Petition is allowed and the order of detention in C3/D.O.51/2017 dated 28.08.2017 passed by the 2^nd respondent is set aside. The detenu, namely, Thiru.Iyyappan, S/o.Mani, Male, aged about 35 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/Asst.Registrar (CS III ) /true copy/ Sub Asst. Registrar

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kas

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