Allowed

Saraswathy v. State Rep by

Madras HC23 Dec 2021HCP/1160/2021

Case brief

AI extract

What is this about?

The High Court quashed a detention order under the Tamil Nadu Prohibition of Liquor Act against Umapathi due to gross, unexplained delays in submitting remarks and disposing of the petitioner's representation, holding that such delays render detention illegal under Articles 21 and 22.

What did the court decide?

The detention order was set aside and the detenu Umapathi is directed to be released forthwith.

Saraswathy Vs State Rep by — Bail and Remand | Madras HC (2021)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 23.12.2021

¶3

CORAM

¶4

THE HONOURABLE MR. JUSTICE P.N.PRAKASH AND THE HONOURABLE MRS. JUSTICE R.HEMALATHA

¶5

H.C.P.NO.1160 OF 2021

¶6

Saraswathy

¶7

..Petitioner/Wife of the Detenue

¶8

Vs.

¶9

The Secretary to the Government, Government of Tamil Nadu (Home), Prohibition and Excise Department, Fort St.George, Chennai-600 009.

¶10

The District Collector and District Magistrate, Vellore District, Vellore.

¶11

The Superintendent of Police, Vellore District, Vellore.

¶12

The Superintendent, Central Prison, Vellore, Vellore District.

¶13

The Inspector of Police, Gudiyatham Prohibition Enforcement Wing Police Station, Gudiyatham, Vellore District. ..Respondents

¶14

Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records relating to the impugned order C3/D.O.No.45/2021 dated 13.07.2021 on the file of the 2^nd respondent herein and set aside the same as illegal and direct the respondents to produce viz., Umapathi, son of Saminathan, aged about 40 years, now confined at the Central Prison, Vellore, before this Court and set him at liberty.

¶15

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

¶16

For Petitioner : Mr.G.Vinodhkumar For Respondents : Mr.R.Muniyapparaj, Addl. Public Prosecutor

¶17

ORDER

¶18

[Made by P.N.PRAKASH, J.]

¶19

The petitioner is the wife of the detenu Umapathi, son of Saminathan, aged about 40 years. The detenu has been detained by the second respondent by his order in C3/D.O.No.45/2021 dated 13.07.2021, holding him to be a "Bootlegger", as contemplated under Section 2(b) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

¶20

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.

¶21

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.

¶22

The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. 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 13.07.2021. The petitioner made a representation on 24.07.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 27.07.2021. The remarks were duly received on 05.08.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 23.08.2021.

¶24

It is the contention of the petitioner that there was a delay of 9 days in submitting the remarks by the Detaining

¶25

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

¶26

Authority, of which, 2 days were Government Holidays and hence there was an inordinate delay of 7 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 05.08.2021 and there was a delay of 18 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 7 days were Government Holidays, hence, there was an inordinate delay of 11 days in considering the representation.

¶27

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.

¶28

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.

¶29

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.

¶30

In the subject case, admittedly, there is an inordinate and unexplained delay of 7 days in submitting the remarks by the Detaining Authority and unexplained delay of 11 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed.

¶31

In the result, the Habeas Corpus Petition is allowed and the order of detention in C3/D.O.No.45/2021 dated 13.07.2021, passed by the second respondent is set aside. The detenu, viz., Umapathi, son of Saminathan, aged about 40 years, is directed to be released forthwith unless his detention is required in connection with any other case.

¶32

Sd/Assistant Registrar(CS IV)

¶33

//True Copy//

¶34

Sub Assistant Registrar

¶35

nsd

¶36

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

¶37

¶38

The Secretary to the Government, Government of Tamil Nadu (Home), Prohibition and Excise Department, Fort St.George, Chennai-600 009.

¶39

The District Collector and District Magistrate, Vellore District, Vellore. 3. The Superintendent of Police, Vellore District, Vellore. 4. The Superintendent, Central Prison, Vellore, Vellore District.

¶40