Allowed

Mohammed Musamil v. the Additional Chief Secretary to Government

Madras HC23 Jul 2021HCP/963/2021

Case brief

AI extract

What is this about?

In a Habeas Corpus petition challenging an order of preventive detention, the High Court of Judicature at Madras quashed the detention order due to inordinate and unexplained delays in the government process, violating the detenu's fundamental rights under Articles 21 and 22 and precedent rulings.

What did the court decide?

The order of detention in Memo No.531/BCDFGISSSV/2020 dated 31.12.2020 is set aside and the detenu is directed to be released forthwith unless required otherwise.

Mohammed Musamil Vs the Additional… — Constitutional and Fundamental Rights | Madras HC (2021)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 23.07.2021

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE P.N.PRAKASH

¶5

and

¶6

THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

¶7

H.C.P.No.963 of 2021

¶8

Mohammed Musamil,

¶9

S/o.Shiek Dawood Mohideen

¶10

...Petitioner/detenu

¶11

versus

¶12

The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

¶13

The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007.

¶14

The Inspector of Police, Central Crime Branch, Team II, Bank Fraud Prevention Wing, Chennai.

¶15

The Superintendent of Prison, Central Prison, Puzhal-II, Thiruvallur - 066. ...Respondents

¶16

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 31.12.2020 in Memo No.531/BCDFGISSSV/2020 against the petitioner / detenu Mohammed Musamil, son of Sheik Dawood Mohideen, aged about 35 years, who is 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.

¶17

For Petitioner : Mr.V.Paarthiban

¶18

For Respondents : Mr.R.Muniyapparaj

¶19

Government Advocate (Crl. Side)

¶20

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

¶21

O R D E R

¶22

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

¶23

The petitioner is the detenu viz. Mohammed Musamil, son of Sheik Dawood Mohideen, aged about 35 years. The detenu has been detained by the second respondent by its order dated 31.12.2020 in Memo No.531/BCDFGISSSV/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.

¶24

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.

¶25

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.

¶26

The learned Government Advocate (Crl. Side) 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.

¶27

The Detention Order in question was passed on 31.12.2020. The petitioner made a first representation on Nil. Thereafter, remarks were called for by the Government from the Detaining Authority on 09.02.2021. The remarks were duly received on 15.02.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 27.02.2021.

¶28

It is the contention of the petitioner that there was a delay of 6 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence, there was an inordinate delay of 4 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 15.02.2021 and there was a delay of 12 days in considering the representation by the Hon'ble Minister

¶29

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

¶30

for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 2 days were Government Holidays, hence, there was inordinate delay of 10 days in considering the representation.

¶31

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.

¶32

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.

¶33

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.

¶34

In the subject case, admittedly, there is an inordinate and unexplained delay of 4 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.

¶35

In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No.531/BCDFGISSSV/2020 dated 31.12.2020, passed by the second respondent is set aside. The detenu, viz. Mohammed Musamil, son of Sheik Dawood Mohideen, aged about 35 years, is directed to be released forthwith unless his detention is required in connection with any other case.

¶36

Sd/Assistant Registrar

¶37

//True Copy//

¶38

Sub Assistant Registrar

¶39

sri

¶40

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

¶41

¶42

The Additional Chief Secretary to Government,

¶43

Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

¶44

The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007.

¶45

The Inspector of Police, Central Crime Branch, Team II, Bank Fraud Prevention Wing, Chennai.

¶46

The Superintendent of Prison, Central Prison, Puzhal-II, Thiruvallur - 066.

¶47

The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

¶48

The Public Prosecutor, High Court, Madras.

¶49

H.C.P.No.963 of 2021

¶50

SR-II(CO) BE(29/07/2021)

¶51

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

Mohammed Musamil v. the Additional Chief Secretary to Government

Case brief

What is this about?

What did the court decide?

Mohammed Musamil v. the Additional Chief Secretary to Government

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Renganthan, M/30 Vs State Rep by

Ranganathan Vs the State of Tamilnadu Rep.by Tis

Selvam Vs the State of Tamil Nadu, Rep.by Its

Ramakrishnan Vs the State of Tamilnadu, Represented by

Saraswathi Vs The Additional Deputy General of Prisons

M.Aysha Parveen Vs The State Rep. by its