Allowed

Jabar Hussain v. the State of Tamil Nadu

Madras HC9 Jul 2019HCP/798/2019

Case brief

AI extract

What is this about?

This High Court allowed a habeas corpus petition challenging a detention order under the Tamil Nadu Goondas Act. The court held that the unexplained delay of 13 days by the detaining authority in considering the detenu's representation violated procedural safeguards. Consequently, the detention order was quashed and the detenu was directed to be released.

What did the court decide?

The detention order dated 07.04.2019 is set aside and the detenu is directed to be released forthwith unless required for another case.

Jabar Hussain Vs the State of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2019)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 09.07.2019

¶3

Coram

¶4

The Hon'ble Mr. Justice M.M.SUNDRESH and The Hon'ble Mr. Justice M. NIRMAL KUMAR

¶5

H.C.P. No.798 of 2019

¶6

Jabar Hussain ... Petitioner /

¶7

Brother of the detenu

¶8

-vs-.

¶9

The State of Tamil Nadu Rep. By its Secretary to Government, Department of Prohibition and Excise(Home), Fort St.George, Chennai – 600 009

¶10

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

¶11

Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus calling for the records in No.27/BCDFGISSSV/2019 dated 07.04.2019 on the file of the second respondent herein and set aside the same as illegal and produce the detenu Anwar @ Anwar Hussain, son of Khadar Basha, aged about 27 years, who is confined at Central Prison, Puzhal, Chennai before this Court and set him at liberty.

¶12

ORDER

¶13

The petitioner is the brother of the detenu, Anwar @ Anwar Hussain, son of Khadar Basha, aged about 27 years. The detenu has been detained by the second respondent by his order in No.27/BCDFGISSSV/2019 dated 07.04.2019, holding to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

¶14

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

¶15

2.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.

¶16

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.

¶17

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 detenue and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

¶18

The Detention Order in question was passed on 07.04.2019. The petitioner made a representation dated 07.05.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 13.05.2019. The remarks were duly received on 16.05.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 03.06.2019.

¶19

It is the contention of the petitioner that the remarks were received on 16.05.2019 and there was delay of 15 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 2 days were Government Holidays, hence, there was inordinate delay of 13 days in considering the representation. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 03.06.2019.

¶20

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 detenue.

¶21

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

¶22

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.

¶23

In Tara Chand vs. State of Rajasthan and others, reported in 1980 (2) SCC 321, the Hon'ble 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.

¶24

In the subject case, admittedly, there is an inordinate and unexplained delay of 13 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed.

¶25

In the result, the Habeas Corpus Petition is allowed and the order of detention in No.27/BCDFGISSSV/2019 dated 07.04.2019 passed by the second respondent is set aside. The detenu, Anwar @ Anwar Hussain, son of Khadar Basha, aged about 27 years, is directed to be released forthwith unless his detention is required in connection with any other case.

¶26

Sd/Assistant Registrar(CS-II) //True Copy// Sub Assistant Registrar mmi/ssm To

¶27