Allowed

B.Kowsalaya v. the Secretary to Government

Madras HC19 Jul 2021HCP/2342/2020

Case brief

AI extract

What is this about?

In this Habeas Corpus petition, the Madras High Court quashed a detention order under the Tamil Nadu Premature Consideration of Appeals Act due to unexplained delays by authorities in processing the petitioner's representation, citing violation of procedural safeguards.

What did the court decide?

The detention order in C.O.C.No.52/2020 dated 24.09.2020 is set aside and the detenu is directed to be released forthwith.

B.Kowsalaya Vs the Secretary to… — Constitutional and Fundamental Rights | 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.2342 of 2020

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B.Kowsalaya .. Petitioner

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Vs.

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1.The Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai-9

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2.The District Collector and District Magistrate Nagapattinam District

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3.The Superintendent Central Prison, Thiruchirapalli

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4.The Superintendent of Police Nagapattinam District

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5.The Inspector of Police Keelaiyur Police Station Nagapattinam District

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.. 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 24.09.2020 in C.O.C.No.52/2020 against the petitioner's husband viz., Baburaj, aged about 28 years, S/o.Balusamy, who is confined at Central Prison, Thiruchirapalli and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty.

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For Petitioner : Mr.S.J.Mohamed Sathik For Respondents : Mr.R.Muniyapparaj 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., Baburaj, aged about 28 years, S/o.Balusamy. The detenu has been detained by the 2^nd respondent by his order dated 24.09.2020 in C.O.C.No.52/2020, holding him to be a "SEXUAL OFFENDER", as contemplated under Section 2(ggg) 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) 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 24.09.2020. The petitioner made a representation on 03.11.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 06.11.2020. The remarks were duly received on 19.12.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 11.01.2021.

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It is the contention of the petitioner that there was a delay of 43 days in submitting the remarks by the Detaining Authority, of which 13 days were Government Holidays and hence, there was an inordinate delay of 30 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 19.12.2020 and there was a delay of 21 days in considering the representation by the Hon'ble Minister

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

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for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 9 days were Government Holidays, hence, there was inordinate delay of 12 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 30 days in submitting the remarks by the Detaining Authority and unexplained delay of 12 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.O.C.No.52/2020, dated 24.09.2020, passed by the 2^nd respondent is set aside. The detenu viz., Baburaj, aged about 28 years, S/o.Balusamy, is directed to be released forthwith, unless his detention is required in connection with any other case.

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gya

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s/dAssistant 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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