Allowed

Palavesam v. the Principal Secretary to

Madras HC7 Jul 2017HCP(MD)/305/2017

Case brief

AI extract

What is this about?

This is a habeas corpus petition challenging a detention order passed under the Tamil Nadu Goondas Act ('Goonda') Act for the petitioner. The High Court held that an unexplained delay of five days in considering the petitioner's representation rendered the detention illegal and ordered the petitioner's release.

What did the court decide?

Habeas corpus petition allowed; detention order in No.7/BCDFGISSSV/2017 set aside; detenu Palavesam directed to be released forthwith unless required in another case.

Palavesam Vs the Principal Secretary to — Bail and Remand | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 07.07.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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H.C.P.(MD) No.305 of 2017

Palavesam

... Petitioner

-vs-

1.State of Tamil Nadu, Rep. by the Principal Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009. 2.The Commissioner of Police, Tirunelveli City, Tirunelveli.

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3.The Superintendent, Central Prison, Palayamkottai, Tirunelveli. ... Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records connected with the detention connected with the detention order passed in No.7/BCDFGISSSV/2017 dated 14.02.2017 on the file of the 2nd respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu namely Palavesam, S/o. Kumarasamy, aged about 27 years, now detained at Central Prison, Palayamkottai, before this Hon'ble Court and set him at liberty forthwith.

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For Petitioner : Mr.N.Pragalathan For Respondents : Mr.C.Ramesh Additional Public Prosecutor

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O R D E R

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

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The petitioner, namely, Palavesam, son of Kumarasamy, Male, aged about 27 years has been detained by the second respondent by https://hcservices.ecourts.gov.in/hcservices/ his order in No.7/BCDFGISSSV/2017 dated 14.02.2017, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu

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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 on time and there was an inordinate and unexplained delay.

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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 14.02.2017. The petitioner made a representation on 25.02.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 02.03.2017. The remarks were duly received on 02.03.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 10.03.2017.

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6. It is the contention of the petitioner that there was a delay of 7 days in considering the representation, of which 2 days were Government Holidays, hence, there was another inordinate delay of 5 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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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 https://hcservices.ecourts.gov.in/hcservices/ 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 inordinate and unexplained delay of 5 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 No.7/BCDFGISSSV/2017, dated 14.02.2017, passed by the second respondent is set aside. The detenu, namely, Palavesam, son of Kumarasamy, aged about 27 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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Sd/Assistant Registrar(A.E) /True Copy/

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Sub Assistant Registrar

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To:

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1.The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

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2.The Commissioner of Police, Tirunelveli City, Tirunelveli.

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3.The Superintendent, Central Prison, Palayamkottai, Tirunelveli.