Allowed

Ganesan v. the Principal Secretary

Madras HC1 Jul 2020HCP/2786/2019

Case brief

AI extract

What is this about?

In this habeas corpus petition, the High Court quashed a detention order against the petitioner's son, 'Subash', passed under Section 2(f) of Tamil Nadu Act 14 of 1982. The Court held that an unexplained delay of several days in submitting remarks and considering the detentioneers representation violated procedural safeguards under Article 22 and caused a violation of fundamental rights under Arti

What did the court decide?

The detention order dated 12.10.2019 is set aside; the detenu Subash is directed to be released forthwith unless required in another case.

Ganesan Vs the Principal Secretary — Pension and Retirement Benefits | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.07.2020

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Coram The Hon'ble Mr. Justice M.M.SUNDRESH and The Hon'ble Mr. Justice D.KRISHNAKUMAR H.C.P. No. 2786 of 2019

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Ganesan ... Petitioner -vs1.The Principal Secretary, Home Department, State of TamilNadu, Secretariat, Fort St.George, Chennai-600009.

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2.The Commissioner of Police, Greater Chennai Police, Vepery, Chennai-600007.

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3.The Superintendent of Prison, Puzhal Central Prison, Puzhal, Chennai-600066 ... Respondents

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Petition filed under Article 226 of the Constitution of India to issue a writ of habeas corpus for direction to produce the records relating to the detention order dated 12.10.2019 made in detention order in Memo No.659/BCDFGISSSV/2019 passed by the 2^nd respondent and quash the same and direct the respondents to produce the detenu Subash @ Subash Chandra Bose, S/o. Ganesan, aged about 26 years branded as Goonda, now confined in Central Prison, Puzhal Chennai before this Court and set him at liberty.

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For Petitioner : Mr.A.Ashvathaman For Respondents :^{Mr.R.Prathap Kumar} Addl. Public Prosecutor

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

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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 Subash @ Subash Chandra Bose, S/o. Ganesan, aged about 26 years who is the detenu. The detenu has been detained by the second respondent by his order in Memo No.659/BCDFGISSSV/2019 dated 12.10.2019, holding him 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.

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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.

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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 12.10.2019. The petitioner made a representation on 09.11.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 12.11.2019. The remarks were duly received on 18.11.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 29.11.2019.

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It is the contention of the petitioner that there was a delay of 6 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was a delay of 4 days in submitting the remarks. It is the

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

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further contention of the petitioner that the remarks were received on 18.11.2019 and there was a delay of 9 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 7 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 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 4 days in submitting the remarks and 7 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 Memo No.659/BCDFGISSSV/2019 dated 12.10.2019, passed by the second respondent is set aside. The detenu, namely, Subash @ Subash Chandra Bose, S/o. Ganesan, aged about 26 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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-s/dAssistant Registrar

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True Copy

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Sub-Assistant Registrar

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raa/mmi/ssm

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

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To
1.The Principal Secretary to Government
Home Department,
Secretariat,
Fort St.George, Chennai-600009.
2.The Commissioner of Police,
Greater Chennai Police,
Vepery, Chennai-600007.
3.The Superintendent of Prison,
Puzhal Central Prison,
Puzhal, Chennai-600066
4.The Joint Secretary to Government
Public Law & Order Fort St.George
Chennai-600 009.
5.The Public Prosecutor,
High Court, Madras.
H.C.P. No. 2786 of 2019
rld(co)
aa10/09/2020

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Page 4 of 4

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

Ganesan v. the Principal Secretary

Case brief

What is this about?

What did the court decide?

Ganesan v. the Principal Secretary

Case brief

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What did the court decide?

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