Allowed

Sathiya v. the State of Tamil Nadu, Rep.by Its

Madras HC29 Nov 2021HCP/73/2021

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the Court quashed a prevention order against a sexual offender due to unexplained and inordinate delays by the detaining authority and the Government in considering the detenu's representation, holding that such delays render the detention illegal under Article 21.

What did the court decide?

The detention order dated 04.12.2020 is set aside and the detenu Ganesh @ Lingam ordered to be released forthwith unless required for another case.

Sathiya Vs the State of Tamil Nadu, Rep.by Its — Bail and Remand | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 29.11.2021

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CORAM

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THE HONOURABLE Mr.JUSTICE P.N.PRAKASH AND THE HONOURABLE Mrs.JUSTICE R.HEMALATHA

H.C.P.No.73 of 2021

Sathiya

.. Petitioner

Vs.

1.The State of Tamilnadu

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Rep. by its Additional Chief Secretary to Government Home, Prohibition and Excise Department,

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Chennai – 600 009.

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2.The Commissioner of Police, Greater Chennai City,

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Vepery, Chennai – 600 007.

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3.State Rep. by

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The Inspector of Police,

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W-4, Vepery Police Station

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In-charge W-4, Kilpauk All Woman Police Station, Chennai.

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Cr.No. 07 of 2020

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4.The Superintendent, Central Prison, Puzhal, Chennai – 600 066. .. 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 relating to the detention order dated 04.12.2020 made in detention order Memo No.498/BCDFGISSSV/2020 passed by the 2^nd respondent herein quash the same and direct the respondents to produce the body or person of the petitioner is the wife of detenu Ganesh @ Lingam, S/o.Subramani aged about 30 years branded as Sexual Offender and now confined in Central Prison, Puzhal, Chennai, before this Hon'ble Court and set him at liberty.

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

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For Petitioner : Mr.Mohammed Aasif

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For Respondents: Mr.R.Muniyappraj Additional Public Prosecutor

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O R D E R

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[Order of the Court was made by R.HEMALATHA, J.]

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The petitioner is the wife of the detenu, Ganesh @ Lingam, S/o.Subramani, aged 30 years. The detenu has been detained by the 2^nd respondent by his order dated 04.12.2020 in Memo No.498/BCDFGISSSV/2020, holding him to be a "Sexual Offender", as contemplated under Section 3(1) 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 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 filed his counter affidavit and 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 04.12.2020. The petitioner made a representation on 08.01.2021. Thereafter, remarks were called for by the Government from the

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

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Detaining Authority on 12.01.2021. The remarks were duly received on 21.01.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 04.02.2021.

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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 4 days were Government Holidays and hence, there was an inordinate delay of 5 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 21.01.2021 and there was a delay of 15 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 5 days were Government Holidays, hence, there was inordinate delay of 10 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 5 days in submitting the remarks by the Detaining Authority and unexplained delay of 10 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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https://hcservices.ecourts.gov.in/hcservices/

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In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No.498/BCDFGISSSV/2020, dated 04.12.2020, passed by the 2^nd respondent is set aside. The detenu viz., Ganesh @ Lingam, S/o.Subramani, aged 30 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(CO)

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// True Copy //

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Sub Assistant Registrar

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mtl

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