Madras High Court
Boopalan vs The Secretary To Government on 14 December, 2021
Bench: P.N.Prakash, R.Hemalatha
H.C.P.No.1258 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.12.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mrs. Justice R.HEMALATHA
H.C.P.No.1258 of 2021
Boopalan .. Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St.George,
Chennai-600 009.
2.The District Collector and District Magistrate,
Chengalpattu District, Chengalpattu.
3.The Superintendent of Police,
Chengalpattu District, Chengalpattu.
4.The Superintendent of Prison,
Special Prison for Women, Puzhal,
Chennai – 600 066.
5.State represented by
The Inspector of Police,
P.E.W. Chengalpattu Police Station,
Chengalpattu District. .. Respondents
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https://www.mhc.tn.gov.in/judis
H.C.P.No.1258 of 2021
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 sister's daughter detention under Tamil Nadu Act 14
of 1982 vide detention order dated 30.07.2021 on the file of the
second respondent herein made in proceedings Memo
CPT.No.34/2021, quash the same as illegal and consequently direct
the respondents herein to produce the petitioner's sisters's daughter
viz., Jayanthi, W/o.Senthilkumar, aged 35 years, before this Court
and set the petitioner's sister's daughter at liberty from detention,
now the petitioner's sister's daughter detained at the Special Prison
for Women, Puzhal, Chennai.
For Petitioner : Mr.R.Sasikumar
For Respondents : Mr.R.Muniyapparaj,
Addl. Public Prosecutor
ORDER
[Made by P.N.PRAKASH, J.] The petitioner is the uncle of the detenue Jayanthi, W/o.Senthilkumar, aged 35 years. The detenue has been detained by the second respondent by his order in CPT.No.34/2021 dated 30.07.2021, holding her 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. Page 2 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1258 of 2021
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.
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 strongly opposed the Habeas Corpus Petition by filing his counter. 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 detenue 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 30.07.2021. The petitioner made a representation on 13.09.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 15.09.2021. The remarks were duly received on 30.09.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 29.10.2021.
6. It is the contention of the petitioner that there was a delay of 15 days in submitting the remarks by the Detaining Authority, of which, 4 days were Government Holidays and hence there was an inordinate delay of 11 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 30.09.2021 and there was a delay of 29 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 11 days were Government Holidays, hence, there was an inordinate delay of 18 days in considering the representation. Page 4 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1258 of 2021
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 detenue.
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 detenue 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 11 days in submitting the remarks by the Page 5 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1258 of 2021 Detaining Authority and unexplained delay of 18 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.
In the result, the Habeas Corpus Petition is allowed and the order of detention in CPT.No.34/2021 dated 30.07.2021, passed by the second respondent is set aside. The detenue, viz., Jayanthi, W/o.Senthilkumar, aged 35 years, is directed to be released forthwith unless her detention is required in connection with any other case.
(P.N.P.,J.) (R.H.,J.) 14.12.2021 Index: Yes/No nsd Page 6 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1258 of 2021 To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009.
2.The District Collector and District Magistrate, Chengalpattu District, Chengalpattu.
3.The Superintendent of Police, Chengalpattu District, Chengalpattu.
4.The Superintendent of Prison, Special Prison for Women, Puzhal, Chennai – 600 066.
5.The Inspector of Police, P.E.W. Chengalpattu Police Station, Chengalpattu District.
6.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai – 9.
7.The Public Prosecutor, High Court, Madras.
Page 7 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1258 of 2021 P.N.PRAKASH,J.
and R.HEMALATHA,J.
nsd H.C.P.No.1258 of 2021 14.12.2021 Page 8 of 8 https://www.mhc.tn.gov.in/judis