Allowed

Hanifa v. the Secretary to Government

Madras HC16 Jun 2021HCP/2337/2020

Case brief

AI extract

What is this about?

The High Court permitted a habeas corpus petition filed by Hanifa challenging his son's detention as a drug offender. Finding gross and unexplained procedural delays in processing the representation against the detention, the Court quashed the order dated 25.11.2020 and directed the immediate release of the detenu.

What did the court decide?

The detention order dated 25.11.2020 is set aside. The detenu is directed to be released forthwith unless his detention is required in connection with any other case.

Hanifa Vs the Secretary to Government — Pension and Retirement Benefits | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 16.06.2021

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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.2337 of 2020

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Hanifa ... Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Commissioner of Police/
Detaining Authority,
Huzur Road,
Coimbatore City,
Coimbatore - 18.
3.The Superintendent of Police,
Central Prison-Coimbatore,
Coimbatore District.
4.State represented by
The Inspector of Police,
B-1, Bazaar Police Station,
Coimbatore District. ... Respondents

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Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the entire records relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order dated 25.11.2020 on the file of the second respondent herein made in proceedings Memo C.No.70/G/IS/2020, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son viz., H.Nowsath, son of Hanifa, aged about 34 years, before this Court and set him at liberty forthwith.

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

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For Petitioner : Mr.W.Camyles Gandhi For Respondents : Mr.R.Muniyapparaj Govt. Advocate (Crl.Side)

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ORDER

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

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The petitioner is the father of the detenu viz., H.Nowsath, son of Hanifa, aged about 34 years. The detenu has been detained by the second respondent by his order in C.No.70/G/IS/2020 dated 25.11.2020, 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) 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 25.11.2020. The petitioner made a representation on 17.12.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 21.12.2020. The remarks were duly received on 24.12.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 09.01.2021.

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

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It is the contention of the petitioner that there was a delay of 3 days in submitting the remarks by the Detaining Authority, of which there was no Government Holiday and hence there was an inordinate delay of 3 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 24.12.2020 and there was a delay of 16 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 7 days were Government Holidays, hence, there was inordinate delay of 9 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 3 days in submitting the remarks by the Detaining Authority and unexplained delay of 9 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.No.70/G/IS/2020 dated 25.11.2020, passed

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

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by the second respondent is set aside. The detenu, viz., H.Nowsath, son of Hanifa, aged about 34 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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Sd/-

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Assistant Registrar(CS IV)

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//True Copy//
Sub Assistant Registrar
nsd
To
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Commissioner of Police/
Detaining Authority,
Huzur Road,
Coimbatore City,
Coimbatore - 18.
3.The Superintendent of Police,
Central Prison-Coimbatore,
Coimbatore District.
4.The Inspector of Police,
B-1, Bazaar Police Station,
Coimbatore District.
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.2337 of 2020
gsm[co]
srg 18/06/2021

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

Hanifa v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

Hanifa v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

What the court decided

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