Allowed

P.Kavibharathi v. State of Tamilnadu Rep.by

Madras HC16 Nov 2021HCP/975/2021

Case brief

AI extract

What is this about?

The High Court allowed a Habeas Corpus petition filed by the petitioner, wife of a detenu detained under Section 2(f) of the Tamil Nadu Act 14 of 1982. The Court quashed the detention order due to inordinate and unexplained delays in considering the petitioner's representation, violating procedural safeguards under the Constitution.

What did the court decide?

The detention order dated 27.05.2021 in C.No.24/G/IS/Tiruppur City/2021 is set aside. The detenu is directed to be released forthwith unless his detention is required in connection with any other case

P.Kavibharathi Vs State of Tamilnadu… — Constitutional and Fundamental Rights | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 16.11.2021

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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.975 of 2021

P. Kavibharathi

...Petitioner

Vs.

1.State of Tamilnadu represented by Secretary to Government, Home, Prohibition and Excise Department For St. George, Chennai 600 009.

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2.The Commissioner of Police, Tiruppur City.

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3.The Superintendent of Police, Central Prison Coimbatore, Coimbatore.

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4.State Rep. by Inspector of Police, 15, Velampalaiyam Police Station

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Tiruppur. ...Respondents

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Petition filed under Article 226 of the Constitution of India, praying to issue a WRIT OF HABEAS CORPUS to call for the records of the 2nd respondent, pertaining to the order made in C.No.24/G/IS/Tiruppur City/2021 dated 27.05.2021 in detaining the detenu under the Tamilnadu Act 14/1982 as a Goonda and quash the same and direct the respondents to produce the detenu, namely Bharathi @ Beema @ Palaniyandi Son of Rameswaran who is detained at the Central Prison, Coimbatore, before this Hon'ble Court and set him at liberty.

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For petitioner : Mr. J. Franklin. 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 R.HEMALATHA, J.]

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The petitioner is the wife of the detenu. The detunu has been detained by the 2^nd respondent by his order dated 27.05.2021 in C.No.24/G/IS/Tiruppur City/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 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 27.05.2021. The petitioner made a representation on 05.06.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 08.06.2021. The remarks were duly received on 15.06.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 26.07.2021.

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It is the contention of the petitioner that there was a delay of 7 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence, there was a delay of 5 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 15.06.2021 and there was a delay of 41 days in considering the representation by the Hon'ble Minister for Home,

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

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Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 13 days were Government Holidays, hence, there was a delay of 28 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 unexplained delay of 5 days in submitting the remarks by the Detaining Authority and an inordinate and unexplained delay of 28 days 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 C.No.24/G/IS/Tiruppur City/2021 dated 27.05.2021, passed by the 2^nd respondent is set aside. The detenu Bharathi @ Beema @ Palaniyandi, Son of Rameswaran, aged 24 years, is directed to be released forthwith, unless his detention is required in connection with any other case.

Sd/-

Assistant Registrar

// True Copy //

Sub Assistant Registrar

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bga

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