High Court quashed an order of preventive detention under Tamil Nadu Act 14 of 1982 due to an unexplained 15-day delay in considering the detenue's representation, violating Article 22(5), and ordered the petitioner's brother's release.
Order of detention quashed; detenue ordered to be set at liberty forthwith.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2018
CORAM
THE HON'BLE DR. JUSTICE S.VIMALA AND THE HON'BLE MRS. JUSTICE S.RAMATHILAGAM
Habeas Corpus Petition No.311 of 2018
Fathima .. Petitioner / Sister of the detenue - Vs - 1. State of Tamilnadu, Rep. By the Secretary, Home, Prohibition and Excise Department, Fort St. George, Chennai 600 009 2. The Commissioner of Police, Greater Chennai, Vepery, Chennai – 600 007. .. Respondents
Petition filed for the issuance of a writ of habeas corpus calling for the records relating to the detention order in Memo No.35/BCDFGISSSV/2018 dated 29.01.2018 passed by the 2nd respondent under the Tamilnadu Act 14 of 1982 and set aside the same and direct the respondent to produce the petitioner's brother Thiru.Umar @ Umar Basha S/o.Ajeez, aged about 27 years the detenue, now confined in Central Prison, Puzhal, Chennai before this Court and set aside the petitioner's brother Thiru Umar @ Umar Basha S/o.Ajeez, aged about 27 years the detenue herein at liberty.
For Petitioner : Mr. S.Senthil Vel For Respondents: Mr. R.Prathap Kumar, APP
The second respondent herein clamped an order of detention on 29.01.2018 as against Umar @ Umar Basha S/o.Ajeez, aged about 27 years, as the said authority arrived at the subjective satisfaction that the said detenue is a 'Goonda' and he has to be detained under the provisions of the Tamil Nadu Act 14 of 1982 with a view to preventing him from acting prejudicial to the interest of public health and public order.
4.1. The learned Additional Public Prosecutor appearing for the respondents submitted that there is a delay of 15 days only, in considering the representation and it in no way vitiates the order of detention.
4.2. Though such a contention is advanced, however, no explanation has been adduced by the respondents explaining the delay.
“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].”
Sd/-
Assistant Registrar(CS-IX)
//True Copy//
Sub Assistant Registrar
ia/srk To 1. The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai 600 009
GJ(CO) TR(25/07/2018)
2 issues framed by the court
Whether an unexplained delay of 15 days in considering a representation by a preventively detained person vitiates the order of detention under Article 22(5).
Request to set aside the detention order and release the detenue.
Colour shows how this judgement treated each authority
Rashid Kapadia v. Medha GadgilReferred¶16
Rashid Kapadia v. Medha Gadgil, (2012 (11) SCC 745) · Who else cites this
Mohinuddin v. District Magistrate, BeedReferred¶16
Mohinuddin v. District Magistrate, Beed [(1987) 4 SCC 58 : 1987 SCC (Cri) 674] · Who else cites this
Harshala Santosh Patil v. State of MaharashtraReferred¶16
Harshala Santosh Patil v. State of Maharashtra [(2006) 12 SCC 211 : (2007) 1 SCC (Cri) 680] · Who else cites this
2 provisions across 2 enactments
Fathima
State of Tamilnadu
Commissioner of Police, Greater Chennai
S.Vimala
S.Ramathilagam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
