Allowed

Selvam@Selvakumar v. the Secretary to Government

Madras HC16 Aug 2021HCP/494/2021

Case brief

AI extract

What is this about?

The High Court allowed a Habeas Corpus petition challenging a detention order under the Tamil Nadu Goondas Act. The court held that inordinate and unexplained delays in submitting remarks and considering the petitioner's representation rendered the detention illegal. Consequently, the detention order was quashed.

What did the court decide?

The detention order in C.M.P.No.57/Goonda/Salem City/2020 dated 02.11.2020 is set aside, and the detenu is directed to be released forthwith unless required for another case.

Selvam@Selvakumar 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: 16.08.2021

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Coram

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THE HONOURABLE MR. JUSTICE P.N.PRAKASH and THE HONOURABLE MS. JUSTICE R.N.MANJULA

H.C.P.No.494 of 2021

Selvam @ Selvakumar

S/o.Dhayalan

.. Petitioner

Vs.

The Secretary to Government, Government of Tamil Nadu (Home), Prohibition and Excise Department, Fort St.George, Chennai – 9.

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The Commissioner of Police, Salem City, Salem.

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The Superintendent, Central Prison, Salem – 7.

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The Inspector of Police, Shevapet Police Station, Salem District.

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.. Respondents

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Habeas Corpus Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus calling for the records of the detention order passed by second respondent in C.M.P.No.57/Goonda/Salem City/2020 dated 02.11.2020 and quash the same as illegal and to produce the detenu, namely, Selvam @ Selvakumar S/o.Dhayalan, aged about 38 years, before this Court and set him at liberty.

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For Petitioner : Mr.R.Kumaravel For Respondents : Mr.R.Muniyapparaj Government 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 viz., Selvam @ Selvakumar S/o.Dhayalan, aged about 38 years, has been detained by the second respondent by his order in C.M.P.No.57/Goonda/Salem City/2020 dated

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

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02.11.2020, holding him to be a "Goonda", as contemplated under Section 2(f) 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

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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 by filing his counter. 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 02.11.2020. The petitioner made a representation. Thereafter, remarks were called for by the Government from the Detaining Authority on 14.12.2020. 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 11.01.2021.

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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 one day was a Government holiday and hence, there was a delay of 8 days in submitting the remarks by the Detaining Authority. It is the further contention of the petitioner that the remarks were received on 14.12.2020 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 6 days were Government Holidays. Hence, there was inordinate delay of 13 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

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

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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 8 days in submitting the remarks by the Detaining Authority and unexplained delay of 5 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.M.P.No.57/Goonda/Salem City/2020 dated 02.11.2020 passed by the second respondent is set aside. The detenu, viz., Selvam @ Selvakumar S/o.Dhayalan, aged about 38 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 IX)

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//True Copy//

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Sub Assistant Registrar

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The Secretary to Government, Government of Tamil Nadu (Home), Prohibition and Excise Department, Fort St.George, Chennai – 9.

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The Commissioner of Police, Salem City, Salem.

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

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The Superintendent, Central Prison, Salem – 7. 4. The Inspector of Police, Shevapet Police Station, Salem 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. +1cc to Mr.R.Kumaravel, Advocate, S.R.No.40920. H.C.P.No.494 of 2021 SSI(CO) HS(17/08/2021)

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

Selvam@Selvakumar v. the Secretary to Government

Case brief

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Selvam@Selvakumar v. the Secretary to Government

Case brief

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