Madras High Court
Mageshwari vs The Secretary To Government on 1 December, 2020
Bench: M.M.Sundresh, D.Krishnakumar
HCP No. 861 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2020
Coram
The Hon'ble Mr. Justice M.M.SUNDRESH
and
The Hon'ble Mr. Justice D.KRISHNAKUMAR
H.C.P. No. 861 of 2020
Mageshwari .. Petitioner
Vs
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
2.The District Collector and District Magistrate
of Ranipet District, Ranipet – 1.
3.The Superintendent of Police,
Ranipet District, Ranipet.
4.The Superintendent of Prison,
Central Prison, Vellore – 2.
5.The Inspector of Police,
Walajapet Police Station,
Ranipet District. .. Respondents
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 20.03.2020 in B3.D.O.No.29/2020 against the
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HCP No. 861 of 2020
petitioner son Manikandan, male, aged 25 years, S/o.Palani, who is
confined at Central Prison, Vellore and set aside the same and direct
the respondents to produce the detenu before this Court and set him
at liberty.
For Petitioner : Mr.D.Balaji
For Respondents : Mr.R.Prathap Kumar,
Addl.Public Prosecutor
ORDER
[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the mother of the detenu, Manikandan, S/o.Palani, male, aged 25 years. The detenu has been detained by the second respondent by his order in B3.D.O.No.29/2020 dated 20.03.2020 holding him to be a "Bootlegger", as contemplated under Section 2(b) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.
2. 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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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 representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay.
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.
5. The Detention Order in question was passed on 20.03.2020. The petitioner made a representation on 12.06.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 01.07.2020. The remarks were duly received on 30.07.2020. Thereafter, the Government considered the matter and Page 3 of 7 http://www.judis.nic.in HCP No. 861 of 2020 passed the order rejecting the petitioner's representation on 07.08.2020.
6. It is the contention of the petitioner that there was a delay of 29 days in submitting the remarks by the Detaining Authority, of which 8 days were Government Holidays and hence there was an inordinate delay of 21 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 30.07.2020 and there was a delay of 7 days in considering the representation by the Hon'ble Minister 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 5 days in considering the representation.
7. 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. Page 4 of 7 http://www.judis.nic.in HCP No. 861 of 2020
8. 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.
9. 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.
10. In the subject case, admittedly, there is an inordinate and unexplained delay of 21 days in submitting the remarks by the Detaining Authority and unexplained delay of 5 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.
11. In the result, the Habeas Corpus Petition is allowed and the order of detention in B3.D.O.No.29/2020 dated 20.03.2020, passed by Page 5 of 7 http://www.judis.nic.in HCP No. 861 of 2020 the second respondent is set aside. The detenu, namely, Manikandan, S/o.Palani, male, aged 25 years, is directed to be released forthwith unless his detention is required in connection with any other case.
(M.M.S.,J.) (D.K.K.,J.) 01.12.2020 Index: Yes/No ssm To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009.
2.The District Collector and District Magistrate of Ranipet District, Ranipet – 1.
3.The Superintendent of Police, Ranipet District, Ranipet.
4.The Superintendent of Prison, Central Prison, Vellore – 2.
5.The Inspector of Police, Walajapet Police Station, Ranipet District.
6.The Public Prosecutor, High Court, Madras.
Page 6 of 7 http://www.judis.nic.in HCP No. 861 of 2020 M.M.SUNDRESH, J.
and D.KRISHNAKUMAR, J.
ssm H.C.P. No. 861 of 2020 01.12.2020 Page 7 of 7 http://www.judis.nic.in