Quashed

S. Shunmugavel v. the State of Tamil Nadu Rep.by

Madras HC23 Nov 2018HCP(MD)/1219/2018

Case brief

AI extract

What is this about?

The Madurai Bench quashed a preventive detention order dated 01.08.2018 finding that there was an inordinate and unexplained delay. The court held that procedural safeguards require timely consideration of representations and ordered the detenu's release.

What did the court decide?

Detention order M.H.S.Confdl No.84/2018 dated 01.08.2018 quashed; detenu Subramanian alias Kumar ordered to be set at liberty forthwith.

S. Shunmugavel Vs the State of Tamil Nadu Rep.by — Bail and Remand | Madras HC (2018)

¶1

¶2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:23.11.2018 CORAM:

¶3

THE HONOURABLE MR.JUSTICE R.SUBBIAH and THE HONOURABLE MRS.JUSTICE R.THARANI

¶4

H.C.P(MD)No.1219 of 2018

S.Shunmugavel

: Petitioner

Vs.

1.State of Tamil Nadu,

¶9

Rep. By the Principal Secretary to Government, Home, Prohibition and Excise Department, Fort. St. George,

¶10

Chennai – 600 009.

¶11

2.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

¶12

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

¶13

PRAYER : Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, calling for the entire records connected with the detention order passed in M.H.S.Confdl No.84/2018 dated 01.08.2018 on the file of the second respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu ie., petitioner's son namely Subramanian alias Kumar, aged about 25 years, s/o.Shunmugavel, now detained at Central Prison, Palayamkottai, before this Court and set him at liberty forthwith.

¶14

For Petitioner : Mr.N.Pragalathan For Respondents : Mr.V.Neelakandan, Additional Public Prosecutor.

¶15

O R D E R

¶16

[Order of the Court was made by R.SUBBIAH, J.]

¶17

The petitioner is the father of the detenu - Subramanian alias Kumar, son of Shunmugavel, aged about 25 years. The detenu has been detained by the second respondent by his order in https://hcservices.ecourts.gov.in/hcservices/ M.H.S.Confdl No.84/2018 dated 01.08.2018, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14

¶18

¶19

of 1982. The said order is under challenge in this Habeas Corpus Petition.

¶20

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.

¶21

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.

¶22

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.

¶23

The Detention Order in question was passed on 01.08.2018. The petitioner made a representation dated 16.08.2018. Thereafter, remarks were called for by the Government from the Detaining Authority on 27.08.2018. The remarks were duly received on 14.08.2018. Thereafter, the Government considered the matter and passed the order rejecting the representation on 01.10.2018.

¶24

It is the contention of the petitioner that there was a delay of 18 days in submitting the remarks by the Detaining Authority and thereafter, there was again a delay of 9 days in considering the representation.

¶25

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.

¶26

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 order of detention.

¶27

https://hcservices.ecourts.gov.in/hcservices/ 9. In Tara Chand Vs. State of Rajasthan and others , [ 1980 (2) SCC 321 ], the Hon'ble Supreme Court has held that any

¶28

¶29

inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.

¶30

In the subject case, admittedly, there is an inordinate and unexplained delay of 18 days in submitting the remarks by the Detaining Authority and 9 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

¶31

In the result, the Detention Order, passed by the second respondent, in his proceedings in M.H.S.Confdl No.84/2018 dated 01.08.2018, is quashed. The detenu, - Subramanian alias Kumar, son of Shunmugavel, aged about 25 years, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.

¶32