Allowed

P.Kaliyamoorthy v. the Secretary to the Government

Madras HC5 Nov 2020HCP/242/2020

Case brief

AI extract

What is this about?

In a habeas corpus petition, the High Court quashed a preventive detention order due to gross procedural delay in considering the detenu's representation. The court held that unexplained delays of over a week in submitting remarks and two days in ministerial consideration rendered the order illegal and violated fundamental rights, directing immediate release.

What did the court decide?

The detention order in C.O.C. No. 64 of 2019 dated 09.12.2019 was set aside, and the detenu was directed to be released forthwith.

P.Kaliyamoorthy Vs the Secretary to the… — Pension and Retirement Benefits | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 05.11.2020

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Coram

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The Hon'ble Mr. Justice M.M.SUNDRESH

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and The Hon'ble Mr. Justice D.KRISHNAKUMAR

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H.C.P.No.242 of 2020

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P.Kaliyamoorthy .. Petitioner

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1.The Secretary to Government,

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Home, Prohibition and Excise Department,

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Fort St.George, Chennai-9.

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2.The District Collector and District Magistrate, Nagappattinam District, Nagappattinam. .. Respondents

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Petition filed under Article 226 of the Constitution of India praying to issue a writ of Habeas Corpus calling upon the production of the records relating to the detention order dated 09.12.2019 made in detention order C.O.C.No.64 of 2019 passed by the second respondent herein quash the same and direct the respondents to produce the body of the detenu Kalyanasundaram @ Vairavel, aged about 30, son of Kaliyamoorthy, who has been detained in Central Prison at Thiruchirappalli, before this Court and set him at liberty.

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For Petitioner : Mr.V.Sathish

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For Respondents: Mr.R.Prathap Kumar, Addl.Public Prosecutor

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ORDER

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[Order of the Court was made by M.M.SUNDRESH, J.]

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The petitioner is the father of the detenu, Kalyanasundaram @ Vairavel, aged about 30, son of Kaliyamoorthy. The detenu has been detained by the second respondent by his order in C.O.C.No. 64 of 2019 dated 09.12.2019 holding him to be a "Sexual Offender", as contemplated under Section 2(ggg) 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

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

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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 09.12.2019. The petitioner made a representation on 22.01.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 24.01.2020. The remarks were duly received on 13.02.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 18.02.2020.

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It is the contention of the petitioner that there was a delay of 20 days in submitting the remarks by the Detaining Authority, of which 6 days were Government Holidays and hence there was an inordinate delay of 14 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 13.02.2020 and there was a delay of 4 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 2 days in considering the representation.

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In Rekha vs. State of Tamil Nadu (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 (2007 (2) MWN (Cr.) 145), a Division Bench of this Court has held that the unexplained delay of three days in disposal of the

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

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representation made on behalf of the detenu would be sufficient to set aside the order of detention.

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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 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 14 days in submitting the remarks by the Detaining Authority and unexplained delay of 2 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.

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In the result, the Habeas Corpus Petition is allowed and the order of detention in C.O.C.No. 64 of 2019 dated 09.12.2019, passed by the second respondent is set aside. The detenu, namely, Kalyanasundaram @ Vairavel, aged about 30, son of Kaliyamoorthy, is directed to be released forthwith unless his detention is required in connection with any other case.

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Sd/Assistant Registrar(CS) //True Copy// Sub Assistant Registrar mmi/ssm To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai. 2.The District Collector and District Magistrate, Nagappattinam District, Nagappattinam. 3.The Superintendent of Prison, Central Prison, Tiruchirappalli. 4. The Joint Secretary to Government, Public Law & Order, For st.George, Chennai-09. 5.The Public Prosecutor, High Court, Madras. H.C.P. No. 242 of 2020 SDR 17/12/2020

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

P.Kaliyamoorthy v. the Secretary to the Government

Case brief

What is this about?

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P.Kaliyamoorthy v. the Secretary to the Government

Case brief

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