Allowed

Gunashankari v. the Secretary to the Government

Madras HC12 Nov 2021HCP/742/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition for habeas corpus, quashing a detention order under Tamil Nadu Act 14 of 1982. The court held that the unexplained delay in submitting remarks and considering the petitioner's representation violated procedural safeguards and fundamental rights, rendering the detention illegal.

What did the court decide?

The detention order dated 24.04.2021 in C3/D.O./12/2021 is set aside and the detenu is directed to be released forthwith unless detained for another case.

Gunashankari 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: 12.11.2021

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CORAM

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THE HONOURABLE Mr.JUSTICE P.N.PRAKASH AND

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THE HONOURABLE Mrs.JUSTICE R.HEMALATHA

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H.C.P.No.742 of 2021

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Gunashankari

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Petitioner/Wife of the Detenue

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Vs.

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1 The Secretary to Government Home, Prohibition and Excise Department Secretariat

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Chennai 600 009

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2 The District Collector-cum-District Magistrate Cuddalore District, Cuddalore

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3 The Superintendent of Police Cuddalore District, Cuddalore

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4 The Superintendent of Prison Central Prison, Cuddalore

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5 The Inspector of Police Puduchathiram Police Station Puduchathiram 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 2^nd respondent dated 24.04.2021 in C3/D.O./12/2021 detaining the detenu Nirabu, S/o.Ramadoss, aged about 31 years who is confined in the Central Prison, Cuddalore-4 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

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For respondents Mr.R.Muniyapparaj Additional Public Prosecutor

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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., Nirabu, S/o.Ramadoss, aged about 31 years. The detenu has been detained by the 2^nd respondent by his order dated 24.04.2021 in C3/D.O./12/2021, 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 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 has 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 24.04.2021. The petitioner made an undated representation which was received on 31.05.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 31.05.2021. The remarks were duly received on 24.06.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 09.08.2021.

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It is the contention of the petitioner that there was a delay of 24 days in submitting the remarks by the Detaining Authority, of which 6 days were Government Holidays and hence, there was an inordinate delay of 18 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 24.06.2021 and there was a delay of 3 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy

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

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Secretary dealt with it, of which 2 days were Government Holidays, hence, there was 1 day delay 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 18 days in submitting the remarks by the Detaining Authority and there was 1 day delay in considering the representation by the Hon'ble Minister for Home, 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 C3/D.O./12/2021, dated 24.04.2021, passed by the 2^nd respondent is set aside. The detenu viz., Nirabu, S/o.Ramadoss, aged about 31 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-VII)

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//True Copy//

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Sub Assistant Registrar

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Gya

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