Allowed

Mahalakshmi, v. the Principal Secretary to

Madras HC27 Jul 2017HCP(MD)/485/2017

Case brief

AI extract

What is this about?

In a habeas corpus petition, the Madurai Bench of the Madras High Court quashed a detention order passed under the Tamil Nadu Goondas Act due to gross procedural violations. The court held that unexplained delays of 7 days in submitting remarks and 24 days in considering the representation vitiated the detention, directing the release of the detenu.

What did the court decide?

The order of detention in C.O.C.No.10/2017 dated 28.02.2017 is set aside and the detenu Gurumoorthy is directed to be released forthwith.

Mahalakshmi, Vs the Principal Secretary… — Constitutional and Fundamental Rights | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 27.07.2017

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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.485 of 2017

Mahalakshmi

... Petitioner

-vs-

1.The Prinicpal Secretary to Government,

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State of Tamil Nadu,

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Home, Prohibition and Excise Department,

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Fort St.George, Chennai-600009.

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2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

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3.The Superintendent of Prison, Trichy Central Prison,

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Trichy District. ... 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 order of the second respondent in C.O.C.No.10/2017 dated 28.02.2017 and quash the same and direct the respondents to produce the body or person of the detenu by name Gurumoorthy, son of Lakshmanan, aged about 36 years, now detained at Trichy Central Prison before this Court and set him at liberty forthwith.

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For Petitioner : Mr.R.Alagumani For Respondents : Mr.T.Mohan

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Additional Public Prosecutor O R D E R

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[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the wife of the detenu, namely, Gurumoorthy, Son of Lakshmanan, aged about 36 years. The detenu has been detained by the second respondent by his order in C.O.C.No.10/2017, dated 28.02.2017, holding him to be a "Goonda", https://hcservices.ecourts.gov.in/hcservices/ 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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We have heard the learned counsel appearing 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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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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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 28.02.2017. The petitioner made a representation, dated 02.04.2017 and the same was received on 10.04.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 10.04.2017. The remarks were duly received on 20.04.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 26.05.2017.

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It is the contention of the petitioner that there was a delay of 10 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence there was an inordinate delay of 7 days in submitting the remarks. Thereafter, there was another delay of 35 days in considering the representation, of which 11 days were Government Holidays, hence, there was another inordinate delay of 24 days in considering the representation.

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

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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 7 days in submitting the remarks by the Detaining Authority and 24 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

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In the result, the Habeas Corpus Petition is allowed and the order of detention in C.O.C.No.10/2017 dated 28.02.2017, passed by the second respondent is set aside. The detenu, namely, Gurumoorthy, son of Lakshmanan, Male, aged about 36 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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Sd/-

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Assistant Registrar(RTI)

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/True Copy/

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Sub-Assistant Registrar

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To:

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