Allowed

R.Akila v. the Secretary to the Government

Madras HC30 Apr 2021HCP/204/2021

Case brief

AI extract

What is this about?

In a Habeas Corpus petition challenging the detention order under the Tamil Nadu Act passed against a detenu held to be a 'Goonda', the High Court of Judicature at Madras allowed the petition by holding that the gross and unexplained delay in considering the petitioner's representation rendered the detention order illegal.

What did the court decide?

The detention order dated 09.09.2020 in No.356/BCDFGISSSV/2020 set aside; the detenu directed to be released forthwith unless detention required for another case.

R.Akila Vs the Secretary to the… — Constitutional and Fundamental Rights | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 30.04.2021

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CORAM

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THE HONOURABLE MR.JUSTICE P.N.PRAKASH AND THE HONOURABLE MR.JUSTICE R.PONGIAPPAN H.C.P.NO.204 OF 2021

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R.Akila,
W/o.Vignesh ... Petitioner /
Sister of the detenu
versus
1. The Secretary to the Government,
Government of Tamil Nadu,
(Home) Prohibition and Excise Department,
Secretariat, Fort St.George, Chennai - 600 009.
2. The Commissioner of Police,
Greater Chennai, Veppery,
Chennai - 600 007.
3. The Inspector of Police,
Pazhavanthangal Police Station,
Chennai.
4. The Superintendent,
Central Prison, Puzhal,
Chennai. ... Respondents

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Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the entire records connected with the order of the second respondent herein in Memo No.356/BCDFGISSSV/2020 dated 09.09.2020 passed against the petitioner's brother the detenu namely Akash, son of Raj, aged about 22 years, who is confined at Central Prison, Puzhal and set aside the same, consequently, direct the respondents herein to produce the body and person of the detenu before this Court and set him at liberty.

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For Petitioner : Mr.T.R.Ravi For Respondents : Mr.R.Prathap Kumar Additional Public Prosecutor

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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 R.PONGIAPPAN, J.]

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The petitioner is the sister of Akash, son of Raj, aged about 22 years, who is the detenu. The detenu has been detained by the second respondent by its order dated 09.09.2020 in No.356/BCDFGISSSV/2020, holding him to be a "Goonda", as contemplated under Section 2(f) of the 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 this Petition, 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 has filed a counter and strongly opposed this 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 09.09.2020. The petitioner made a representation on 05.10.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 23.10.2020. The remarks were duly received on 29.10.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 06.11.2020.

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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 1 day was Government Holiday and hence, there was an inordinate delay of 5 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 29.10.2020 and there was a delay of 6 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the

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

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Deputy Secretary dealt with it, of which 3 days were Government Holidays, hence, there was inordinate delay of 3 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 5 days in submitting the remarks by the Detaining Authority and unexplained delay of 3 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 No.356/BCDFGISSSV/2020 dated 09.09.2020, passed by the second respondent is set aside. The detenu, viz. Akash, son of Raj, aged about 22 years, 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) //True Copy//

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Sub Assistant Registrar

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sri

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

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The Secretary to the Government,
Government of Tamil Nadu,
(Home) Prohibition and Excise Department,
Secretariat, Fort St.George,
Chennai - 600 009.
2. The Commissioner of Police,
Greater Chennai, Veppery,
Chennai - 600 007.
3. The Inspector of Police,
Pazhavanthangal Police Station,
Chennai.
4. The Superintendent,
Central Prison, Puzhal,
Chennai.
5. The Joint Secretary to Government of Tamil Nadu,
Public, Law and Order Department,
Secretariat, Chennai - 9.
6. The Public Prosecutor,
High Court, Madras.
H.C.P.No.204 of 2021
SR-II(CO)
CS/07/05/2021

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

R.Akila v. the Secretary to the Government

Case brief

What is this about?

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R.Akila v. the Secretary to the Government

Case brief

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