Allowed

Tamilselvi@Eniya v. the Secretary to the Government

Madras HC19 Jul 2021HCP/1770/2020

Case brief

AI extract

What is this about?

This writ petition challenged an order of preventive detention. The High Court quashed the detention order due to an inordinate and unexplained delay by the authorities in considering the wife's representation, violating procedural safeguards under Articles 21 and 22.

What did the court decide?

The order of detention dated 13.09.2020 is set aside and the detenu is directed to be released forthwith unless detained in connection with any other case.

Tamilselvi@Eniya Vs the Secretary to the… — Pension and Retirement Benefits | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 19.07.2021

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CORAM

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THE HONOURABLE Mr.JUSTICE P.N.PRAKASH AND THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN

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H.C.P.No.1770 of 2020

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Tamilselvi @ Eniya ... Petitioner /Wife of the Detenue

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Vs.

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1.The Secretary to the Government Home, Prohibition and Excise Department Secretariat, Chennai-9

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2.The District Collector and District Magistrate of Kancheepuram Kancheepuram District

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3.The Superintendent of Police Kancheepuram, Kancheepuram District

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4.The Superintendent Central Prison Puzhal, Chennai

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5.State rep. by The Inspector of Police Vishnu Kanchi Police Station Kancheepuram ... Respondents

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Petition filed under Article 226 of the Constitution of India, praying to issue a WRIT OF HABEAS CORPUS to call for the records in connection with the order of detention passed by the 2^nd respondent dated 13.09.2020 in BCDFGISSSV No.45/2020 against the petitioner's husband viz., Santhosh @ Santhosh Kumar, aged about 26 years, S/o.Kumar, who is confined at Central Prison, Puzhal, Chennai and set aside the same and consequently direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty.

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For Petitioner : Mr.A.Saranraj

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For Respondents : Mr.R.Muniyapparaj

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Government Advocate (Crl. Side)

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

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O R D E R

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[Order of the Court was made by P.N.PRAKASH, J.]

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The petitioner is the wife of the detenu viz., Santhosh @ Santhosh Kumar, aged about 26 years, S/o.Kumar. The detenu has been detained by the 2^nd respondent by his order dated 13.09.2020 in BCDFGISSSV No.45/2020, holding him to be a "DRUG OFFENDER", as contemplated under Section 2(e) 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 Government Advocate (Crl. Side) 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 Government Advocate (Crl. Side) filed his counter affidavit and strongly 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 Government Advocate (Crl. Side), 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 13.09.2020. The petitioner made a representation on 28.09.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 01.10.2020. The remarks were duly received on 12.11.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 23.11.2020.

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It is the contention of the petitioner that there was a delay of 42 days in submitting the remarks by the Detaining Authority, of which 15 days were Government Holidays and hence, there was an inordinate delay of 27 days in submitting the remarks. It is the further contention of the petitioner that

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

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the remarks were received on 12.11.2020 and there was a delay of 11 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 4 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 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.

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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 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.

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In the subject case, admittedly, there is an inordinate and unexplained delay of 27 days in submitting the remarks by the Detaining Authority and unexplained delay of 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 BCDFGISSSV No.45/2020, dated 13.09.2020, passed by the 2^nd respondent is set aside. The detenu viz., Santhosh @ Santhosh Kumar, aged about 26 years, S/o.Kumar, 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 VII)

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//True Copy//

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Sub Assistant Registrar

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

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gya

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