Allowed

Rasiya v. the Secretary to Government

Madras HC16 May 2017HCP(MD)/1/2017

Case brief

AI extract

What is this about?

This habeas corpus petition challenged the detention order of Omar Mukhtar under the Tamil Nadu Goondas Prevention Act for procedural delays. The court held that unexplained delays of six and seven days in processing representations rendered the detention illegal. The detention order was quashed, and the detenu was ordered to be set at liberty.

What did the court decide?

The Detention Order No.55 of 2016 dated 17.12.2016 passed by the second respondent is quashed. The detenu Omar Mukhtar is ordered to be set at liberty forthwith if not required for detention in any ot

Rasiya Vs the Secretary to Government — Pension and Retirement Benefits | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 16.05.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE M.V. MURALIDARAN AND THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN

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H.C.P(MD)No.1 of 2017

Rasiya

: Petitioner

Vs.

The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9

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The District Collector and District Magistrate, Dindigul District, Dindigul.

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The Inspector of Police, Palani Town Police Station, Dindigul District.

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The Superintendent of Police, Central Prison, Madurai. : Respondents

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PRAYER : Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the records, connected with the detention order of the second respondent in his proceedings Detention Order No.55/2016 dated 17.12.2016 and quash the same as illegal and produce the detenue, namely, Omar Mukhtar, S/o. Mohammed Ibrahim, aged about 34 years, now he is confined in Central Prison, Madurai, before this Hon'ble Court and set him at liberty.

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For Petitioner : Mr.T.Lajapathi Roy

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For Respondents : Mr.C.Ramesh

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Additional Public Prosecutor.

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O R D E R

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***************

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[Order of the Court was made by M.V. MURALIDARAN, J.]

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The petitioner is the wife of the detenu Omar Mukhtar, S/o.Mohammed Ibrahim, Male, aged about 34 years. The detenu has been https://hcservices.ecourts.gov.in/hcservices/ detained by the second respondent by his order in Detention Order No.55 of 2016, dated 17.12.2016, holding him to be a "Goonda", as

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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 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 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 on time and there was an inordinate and unexplained delay.

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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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The Detention Order in question was passed on 17.12.2016. The petitioner made a representation dated 27.12.2016. Thereafter, remarks were called for by the Government from the Detaining Authority on 30.12.2016. The remarks were duly received on 19.01.2017. Thereafter, the Government considered the matter and passed the order rejecting the representation on 23.01.2017.

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It is the contention of the petitioner that there was a delay of 6 days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of 7 days in considering the representation.

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In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble 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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In Sumaiya Vs. The Secretary to Government, [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 https://hcservices.ecourts.gov.in/hcservices/ order of detention.

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In Tara Chand Vs. State of Rajasthan and others, [1980 (2) SCC 321], the Hon'ble 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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In the subject case, admittedly, there is an inordinate and unexplained delay of 6 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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In the result, the Detention Order, passed by the second respondent, in his proceedings in Detention Order No.55 of 2016, dated 17.12.2016, is quashed. The detenu, namely, Omar Mukhtar, S/o. Mohammed Ibrahim, aged 34, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any Other case.

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