Allowed

Nancy, 30 Yrs, v. Secretary to Government

Madras HC12 Dec 2017HCP/1854/2017

Case brief

AI extract

What is this about?

The Madras High Court allowed a Habeas Corpus petition challenging a detention order under Tamil Nadu Pre-Preventive Detention Act. The court held that unexplained delays in considering the detenu's representations violated procedural safeguards under Article 21, rendering the detention illegal. The order was set aside.

What did the court decide?

The detention order dated 18.08.2017 is set aside, and the detenu is directed to be released forthwith unless detained in another case.

Nancy, 30 Yrs, Vs 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 : 12.12.2017

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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.1854 of 2017

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Nancy ... Petitioner

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-vs-

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1.State of Tamil Nadu represented

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By Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai – 600 009.

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2.The Commissioner of Police, Greater 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 records relating to the detention order passed by the second respondent pertaining to the order made in Memo No.BCDFGISSSV No.493/2017 dated 18.08.2017 in detain the detenu under 2(f) of Tamil Nadu Act 14 of 1982, as a Goonda and quash the same and direct the respondent to produce the detenue Shanthi @ Dilsath, Wife of Selvaraj, aged about 46 years, who is detained at Special Prison for Women, Puzhal, Chennai before this Court and set her at liberty.

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For Petitioner : Mr.G.Nirmalkrishnan For Respondents: Mr.V.M.R.Rajentran

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Additional Public Prosecutor

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The petitioner is the Daughter of the detenue, namely, Tmt.Shanthi @ Dilsath, W/o.Selvaraj, Female, aged about 46 years. The detenue has been detained by the 2^nd respondent by his order in BCDFGISSSV No.493/2017, dated 18.08.2017 holding her 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 inordinate and unexplained delay with regard to the same.

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4.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 18.08.2017. The petitioner made representations, dated 14.09.2017 and 06.10.2017 and the same were received on 20.09.2017 and 09.10.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 21.09.2017 and 10.10.2017. The remarks were duly received on 28.09.2017 and 16.10.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 03.10.2017 and 27.10.2017.

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6.It is the contention of the petitioner that there was a delay of 6 days and 5 days in submitting the remarks by the Detaining Authority, of which 1 day and 2 days were Government Holidays and hence there was a delay of 5 days and 3 days in submitting the remarks. Thereafter, there was another delay of 4 days and 9 days in considering the representation, of which 4 days and 3 days were Government Holidays, hence, there was another delay of 6 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 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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10.In the subject case, admittedly, there is an unexplained delay of 5 days and 3 days in submitting the remarks by the Detaining Authority and 6 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 BCDFGISSSV No.493/2017, dated 18.08.2017 passed by the 2^nd respondent is set aside. The detenue, namely, Tmt.Shanthi @ Dilsath, W/o.Selvaraj, Female, aged about 46 years, is directed to be released forthwith unless her 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. Sd/Assistant Registrar(CS-IX) //True Copy// Sub Assistant Registrar pam To:

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1.Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai – 600 009. 2.The Commissioner of Police, Greater Chennai.

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