Allowed

Venkatesh v. the Secretary to the Government

Madras HC21 Oct 2021HCP/626/2021

Case brief

AI extract

What is this about?

In a Habeas Corpus petition, the High Court set aside a detention order against Kabali @ Lokesh due to inordinate and unexplained delays in the mandatory consideration of the detenu's representation, finding a violation of procedural safeguards under Article 22.

What did the court decide?

The order of detention in BCDFGISSSV No.12/2021 dated 01.04.2021 is set aside, and the detenu is directed to be released forthwith unless detained in another case.

Venkatesh 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: 21.10.2021

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Coram

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THE HONOURABLE MR. JUSTICE P.N.PRAKASH and THE HONOURABLE MRS. JUSTICE S.SRIMATHY

H.C.P.No.626 of 2021

Venkatesh

S/o.Govindhasamy

.. Petitioner

Vs.

1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009.

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2.The District Collector and District Magistrate, Chengalpattu District, Chengalpattu.

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3.The Superintendent of Police, Chengalpattu District, Chengalpattu.

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4.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.

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5.The Inspector of Police, Maraimalai Nagar Police Station, Chengalpattu District. .. 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 in connection with the order of detention passed by the second respondent dated 01.04.2021 in BCDFGISSSV No.12/2021 against the petitioner's friend Kabali @ Lokesh s/o.Thulukkanam, aged 26 years, who is now confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

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For Petitioner : Mr.S.Senthilvel For Respondents: Mr.R.Muniyapparaj Additional Public Prosecutor *****

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

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ORDER

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[Order of the Court was made by S.SRIMATHY, J]

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The petitioner is the friend of the detenu viz., Kabali @ Lokesh s/o.Thulukkanam, aged 26 years. The detenu has been detained by the second respondent by his order in BCDFGISSSV No.12/2021 dated 01.04.2021, 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 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 Additional Public Prosecutor 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 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 01.04.2021. The petitioner made a representation dated 16.07.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 19.07.2021. The remarks were duly received on 30.07.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 23.08.2021.

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It is the contention of the petitioner that there was a delay of 10 days in submitting the remarks by the Detaining Authority, of which 3 days were Government Holidays and hence, there was an inordinate delay of 7 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 30.07.2021 and there was a delay of 23 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, P&E after the Deputy Secretary dealt with it, of which 8 days were Government Holidays. Hence, there was inordinate delay of 22 days in considering the representation.

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In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the

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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 7 days in submitting the remarks by the Detaining Authority and unexplained delay of 15 days in considering the representation by the Hon'ble Minister for for Electricity, P&E. 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 BCDFGISSSV No.12/2021 dated 01.04.2021 passed by the second respondent is set aside. The detenu, viz., Kabali @ Lokesh s/o.Thulukkanam, aged 26 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-V)

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//True Copy//

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Sub Assistant Registrar

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nsd

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