Allowed

Duvarakesh v. the Secretary to the Government

Madras HC28 Jun 2021HCP/2570/2020

Case brief

AI extract

What is this about?

In a habeas corpus petition, the Madras High Court quashed an order of detention against the petitioner's brother. The court held that the unexplained delay in considering the detenu's representation violated fundamental rights under Articles 21 and 22, rendering the detention illegal.

What did the court decide?

The order of detention in Memo.B.C.D.F.G.I.S.S.S.V.No.43/2020 dated 12.10.2020 passed by the second respondent is set aside and the detenu is directed to be released forthwith unless his detention is

Duvarakesh Vs the Secretary to the 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 : 28.06.2021

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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.2570 of 2020
Duvarakesh,
S/o.Mahalingam ... Petitioner /
Brother of the detenu
versus
1.The Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai - 600 009.
2.The District Magistrate and
District Collector,
Tiruvallur District, Tiruvallur.
3.The Superintendent of Police,
Tiruvallur, Tiruvallur District.
4.The Superintendent,
Central Prison,
Puzhal, Chennai.
5.State Rep. By:-
The Inspector of Police,
Sholavaram Police Station,
Tiruvallur District. ... 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 records in connection with the order of Detention passed by the second respondent dated 12.10.2020 in Memo.B.C.D.F.G.I.S.S.S.V.No.43/2020 against the petitioner's brother Sugesh @ Sugeshwaran, M/25 years, Son of Mahalingam, who is confined at Central Prison, Puzhal, Chennai and set aside the same and consequently direct the respondents to produce the detenu before this Court and set him at liberty.

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

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For Petitioner : Mr.Saranraj for Mr.Baalaji For Respondents : Mr.R.Muniyapparaj Government Advocate (Crl. Side)

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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 brother of Sugesh @ Sugeshwaran, son of Mahalingam, aged about 25 years, who is the detenu. The detenu has been detained by the second respondent by its order dated 12.10.2020 in Memo.B.C.D.F.G.I.S.S.S.V.No.43/2020, 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 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 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 Government Advocate (Crl. Side) 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 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 12.10.2020. The petitioner made a representation on 14.12.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 19.12.2020. The remarks were duly received on 28.12.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 11.01.2021.

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

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It is the contention of the petitioner that there was a delay of 9 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence, there was an inordinate delay of 6 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 28.12.2020 and there was a delay of 12 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 8 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 6 days in submitting the remarks by the Detaining Authority and unexplained delay of 8 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 Memo.B.C.D.F.G.I.S.S.S.V.No.43/2020 dated 12.10.2020, passed by the second respondent is set aside. The detenu, viz. Sugesh @

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

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Sugeshwaran, son of Mahalingam, aged about 25 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(CO)

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//True Copy//

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Sub Assistant Registrar
sri
To
1.The Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai - 600 009.
2.The District Magistrate and
District Collector,
Tiruvallur District, Tiruvallur.
3.The Superintendent of Police,
Tiruvallur, Tiruvallur District.
4.The Superintendent,
Central Prison,
Puzhal, Chennai.
5.State Rep. By:-
The Inspector of Police,
Sholavaram Police Station,
Tiruvallur District.
6.The Joint Secretary to Government of Tamil Nadu,
Public, Law and Order Department,
Secretariat, Chennai - 9.

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7.The Public Prosecutor,
High Court, Madras.

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H.C.P.No.2570 of 2020

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sr-II[co] srg 13/07/2021

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

Duvarakesh v. the Secretary to the Government

Case brief

What is this about?

What did the court decide?

Duvarakesh v. the Secretary to the Government

Case brief

What is this about?

What did the court decide?

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