Allowed

Vasanthi, Aged 32 Years, v. the Secretary to the

Madras HC9 Jul 2018HCP/127/2018

Case brief

AI extract

What is this about?

This is a Habeas Corpus petition challenging an order of preventive detention. The Court held that an unexplained delay of 28 days in considering the detenue's representation violated the constitutional right under Article 22(5), rendering the detention illegal. Consequently, the detention order was quashed.

What did the court decide?

The order of detention is quashed; the petitioner is allowed; the detenu is ordered to be set at liberty forthwith.

Vasanthi, Aged 32 Years, Vs the… — Constitutional and Fundamental Rights | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 09.07.2018

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CORAM:

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THE HON'BLE DR. JUSTICE S.VIMALA AND THE HON'BLE MRS. JUSTICE S.RAMATHILAGAM

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H.C.P.No.127 of 2018

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Vasanthi ... Petitioner

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versus

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The Secretary to Government, Home, Prohibition and Excise Dept., Secretariat, Chennai – 600 009.

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The District Collector and District Magistrate, Thiruvannamalai District, Thiruvannamalai. ... Respondents

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Habeas Corpus Petition filed under Article 226 of Constitution of India, for the issuance of Writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the second respondent dated 11.01.2018 in D.O.No.05/2018-C2 against the petitioner's husband, Viji @ Vijayakumar, S/o.Sivanandam, who is confined at Central Prison, Vellore 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.D.Balaji For Respondents: Mr.R.Prathap Kumar Additional Public Prosecutor

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ORDER (DELIVERED BY DR. S.VIMALA, J.) The second respondent, District Collector and District Magistrate, Tiruvannamalai District, clamped an order of detention on 11.01.2018 as against Viji @ Vijayakumar, S/o.Sivanandam, as the said authority arrived at the subjective satisfaction that the said detenu is a 'Bootlegger' and he has to be detained under Section 3 (1) of Tamil Nadu Act 14 of 1982 with a view to preventing him from acting prejudicial to the interest of public health and public order.

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

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Challenging the order of detention, the wife of the detenu has filed the present Habeas Corpus Petition.

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Heard Mr.D.Balaji, learned counsel appearing for the petitioner and Mr.R.Prathap Kumar, learned Addl. Public Prosecutor appearing for the respondents.

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It is contended by the learned counsel for the petitioner that there is a delay in considering the representation and this has rendered the detention illegal. Learned Addl. Public Prosecutor appearing for the respondents submits that though there is a delay of 28 days, but the said delay in no way vitiates the order of detention. Though such a contention is advanced, however, no explanation has been adduced by the respondents explaining the delay.

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In Rashid Kapadia v. Medha Gadgil, (2012 (11) SCC 745), the Supreme Court had occasion to consider the effect of delay in considering the representation and in that context held as under :-

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“13.It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the authority concerned as expeditiously as possible, is a constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the authorities on this aspect, except to take note of a couple of judgments where the principle is discussed in detail. They are: Mohinuddin v. District Magistrate, Beed [(1987) 4 SCC 58 : 1987 SCC (Cri) 674] and Harshala Santosh Patil v. State of Maharashtra [(2006) 12 SCC 211 : (2007) 1 SCC (Cri) 680].”

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In view of the above proposition, the delay in considering the representation submitted by the petitioner, which has not been explained properly, has vitiated the order of detention. The delay is fatal to the order of detention and this has rendered the detention illegal.

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

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On the above ground alone, the order of detention is quashed. The habeas corpus petition is allowed. The detenu, Viji @ Vijayakumar, is ordered to be set at liberty forthwith, unless his custody is otherwise required in any other case.

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Sd/-

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Assistant Registrar(CS VII)

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//True Copy//
Sub Assistant Registrar
ogy
To
1. The Secretary to Government,
Home, Prohibition and Excise Dept.,
Secretariat,
Chennai – 600 009.
2. The District Collector and
District Magistrate,
Thiruvannamalai District,
Thiruvannamalai.
3. The Superintendent,
Central Prison, Vellore.
4.The Joint Secretary to Government,
Public(Law & Order)
Fort St.George, Chenai-09.
5.The Public Prosecutor,
High Court, madras-104.
H.C.P.No.127 of 2018
kk(co)
nr 25/07/2018

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

Vasanthi, Aged 32 Years, v. the Secretary to the

Case brief

What is this about?

What did the court decide?

Vasanthi, Aged 32 Years, v. the Secretary to the

Case brief

What is this about?

What did the court decide?

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