Allowed

Abinaya v. The Additional Chief Secretary to the Government of Tamilnadu

Madras HC15 Mar 2022HCP(MD)/1632/2021

Case brief

AI extract

What is this about?

This Habeas Corpus petition challenged a detention order passed against the petitioner's husband. The Madurai Bench held that an unexplained eight-day delay in considering a representation violated procedural safeguards required under constitutional and statutory provisions, rendering the detention illegal.

What did the court decide?

The order of detention in P.D.No.86/2021 dated 29.07.2021 is set aside and the detenu is directed to be released forthwith.

Abinaya Vs The Additional Chief… — Constitutional and Fundamental Rights | Madras HC (2022)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.03.2022 CORAM: THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.(MD) No.1632 of 2021

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Abinaya

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... Petitioner/Wife of the detenu

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Vs.

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

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The District Collector-cum-District Magistrate, District Collector Office, Thanjavur District.

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The Superintendent of Police, Thanjavur District.

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The Superintendent, Central Prison, Thiruchirappalli.

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... Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records pertaining to the order of detention passed by the second respondent herein made in P.D.No.86/2021, dated 29.07.2021 and to set aside the same and directing the respondents to produce the detenu, petitioner's husband Bharathi, aged about 33 years, S/o.Ganapathy now confined in Central Prison, Thiruchirappalli before this Court and thereby set him at liberty.

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For Petitioner : Mr.B.Dhinesh Kumar, Advocate

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For Respondents : Mr.S.Ravi, Additional Public Prosecutor.

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O R D E R

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The Petitioner is the wife of the detenu, namely, Bharathi, son of Ganapathy, aged about 33 years. The detenu has been detained by the second respondent by his order in https://hcservices.ecourts.gov.in/hcservices/ P.D.No.86/2021, dated 29.07.2021, holding him to be a "Goonda", as

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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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2. We have heard the learned counsel 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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3. 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 representations made by the petitioner were not considered on time and there was an inordinate and unexplained delay with regard to the same.

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4. 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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5. The Detention Order in question was passed on 29.07.2021. The petitioner made a representation, dated 25.09.2021 and the same was received on 30.09.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 01.10.2021 and the same was received on 18.10.2021. Thereafter, the Government considered the matter and passed an order rejecting the petitioner's representation on 28.10.2021. Though the representation, dated 25.09.2021 was received on 30.09.2021, remarks were called for on 01.10.2021 and the same was received on 18.10.2021 with a delay of 8 days, after excluding the Government Holidays of 9 days. The delay in considering the representation remains unexplained.

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6. In Rekha vs. State of Tamil Nadu , reported in 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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7. In Sumaiya vs. The Secretary to Government, reported in 2007 (2) MWN (Cr.) 145, a Division Bench of this Court has held that the unexplained delay of three days in disposal of the https://hcservices.ecourts.gov.in/hcservices/

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representation made on behalf of the detenu would be sufficient to set aside the order of detention.

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8. 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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9. In the subject case, admittedly, there is an unexplained delay of 8 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

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10. In the result, the Habeas Corpus Petition is allowed and the order of detention in P.D.No.86/2021, dated 29.07.2021, passed by the second respondent is set aside. The detenu, namely, Bharathi, son of Ganapathy, aged about 33 years, is directed to be released forthwith unless his detention is required in connection with any other case.

// True Copy //

Note:

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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