Allowed

Kamsala v. the Secretary to Government

Madras HC10 Jan 2022HCP/1237/2021

Case brief

AI extract

What is this about?

The Court allowed a habeas corpus petition seeking release of the petitioner's son detained under the Tamil Nadu Prevention of Nuisances Caused by Assemblies and Crowd Control Act, 1982. The Court quashed the order of detention due to an inordinate and unexplained delay of 14 days by the Detaining Authority in submitting remarks on the petitioner's representation, invoking precedent on procedural

What did the court decide?

The detention order dated 08.07.2021 is set aside. The detenu is directed to be released forthwith unless detention is required in connection with any other case.

Kamsala Vs the Secretary to Government — Constitutional and Fundamental Rights | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 10.01.2022

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CORAM

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THE HONOURABLE MR.JUSTICE P.N.PRAKASH AND THE HONOURABLE MS.JUSTICE R.N.MANJULA

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H.C.P.NO.1237 OF 2021

Kamsala

.. Petitioner

Vs.

The Secretary to Government, Home of Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009.

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The District Magistrate & District Collector, Tiruvallur District, Tiruvallur.

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The Superintendent of Police, Tiruvallur District, Tiruvallur.

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The Superintendent of Prison, Central Prison-II, Puzhal, Chennai-600 066.

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State represented by The Inspector of Police, Mappedu Police Station, Tiruvallur District.

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.. Respondents

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Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the entire records, relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order dated 08.07.2021 on the file of the second respondent herein made in proceedings Memo B.C.D.F.G.I.S.S.S.V.No.80/2021, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son viz., Sethupathi, S/o.Mahendiran, aged 24 years, before this Court and set the petitioner's son at liberty from detention, now the petitioner's son detained at the Central Prison-II, Puzhal, Chennai.

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

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For Petitioner : Mr.R.Sasikumar

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For Respondents : Mr.R.Muniyapparaj, Addl. Public Prosecutor

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ORDER

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[Made by P.N.PRAKASH, J.]

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The petitioner is the mother of the detenu Sethupathi, S/o.Mahendiran, aged 24 years. The detenu has been detained by the second respondent by his order in B.C.D.F.G.I.S.S.S.V.No.80/2021 dated 08.07.2021, 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 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 08.07.2021. The petitioner made a representation 04.08.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 06.08.2021. The remarks were duly received on 27.08.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 20.10.2021.

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

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It is the contention of the petitioner that there was a delay of 21 days in submitting the remarks by the Detaining Authority, of which, 7 days were Government Holidays and hence there was an inordinate delay of 14 days in submitting the remarks.

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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.

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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 14 days in submitting the remarks by the Detaining Authority. 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 B.C.D.F.G.I.S.S.S.V.No.80/2021 dated 08.07.2021, passed by the second respondent is set aside. The detenu, viz.,Sethupathi, S/o.Mahendiran, aged 24 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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Sd/Assistant Registrar(CS-IX)

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//True Copy//

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Sub Assistant Registrar

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nsd

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

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The Secretary to Government, Home of Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009. 2. The District Magistrate & District Collector, Tiruvallur District, Tiruvallur. 3. The Superintendent of Police, Tiruvallur District, Tiruvallur. 4. The Superintendent of Prison, Central Prison-II, Puzhal, Chennai-600 066. 5. The Inspector of Police, Mappedu Police Station, Tiruvallur District.

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The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai – 9. 7. The Public Prosecutor, High Court, Madras.

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H.C.P.No.1237 of 2021

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KSM(CO) RLP(12/01/2022)

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

Kamsala v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

Kamsala v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

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