Madras High Court
S/O.Munusway vs The Secretary To The Government on 21 January, 2019
Author: C.T.Selvam
Bench: C.T.Selvam, S.Ramathilagam
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2019
CORAM:
THE HONOURABLE Mr.JUSTICE C.T.SELVAM
and
THE HONOURABLE Mrs.JUSTICE S.RAMATHILAGAM
H.C.P.No.2139 of 2018
S/o.Munusway ... Petitioner
-Vs-
1.The Secretary to the Government,
Home Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ
of Habeas Corpus, call for the records in connection with the order of detention
passed by the second respondent dated 23.08.2018 in Memo
No.747/BCDFGISSSV/2018 against the petitioner son Jayakanthan, male aged 24
years S/o.Murugesan, who is confined at Central Prison Puzal, Chennai and set
aside the same and direct the respondents to produce the detenu before this
Hon'ble Court and set him at liberty.
For Petitioner : Mr.R.Thiruganam
For Respondents : Mr.R.Prathap Kumar
Additional Public Prosecutor
***
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ORDER
[Order of the Court was made by C.T.SELVAM, J.] The petitioner is the father of the detenu herein, viz. Jayakanthan, son of Murugesan, aged 24 years. The detenu has been detained by the second respondent by his order in No.747/BCDFGISSSV/2018, dated 23.08.2018, holding him to be a "GOONDA", as contemplated under Section 2(f) of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). The said order is under challenge in this Habeas Corpus Petition.
2. The detenu has come to adverse notice in the following cases:-
S.No. Police Station and Crime No. Section of Law
1. T-9 Pattabiram Police Station 457, 380 IPC Crime No.372/2017
2. T-10 Thirumullaivoyal Police Station 451, 380 r/w 511 IPC Crime No.2342/2017
3. T-10 Thirumullaivoyal Police Station 457, 380 IPC Crime No.05/2018 The ground case has been registered against the detenu in Cr.No.840/2018 on the file of the Inspector of Police, T-9 Pattabiram Police Station, for offences u/s 341, 294(b), 336, 427, 392, 397 and 506(ii) IPC. The detention order has been passed by second respondent in No.747/BCDFGISSSV/2018.
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3. We have heard learned counsel for the petitioner and learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.
4. 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.
5. 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.
6. The Detention Order in question was passed on 23.08.2018. The petitioner made a representation, dated 12.09.2018 and the same was received on 20.09.2018. Thereafter, remarks were called for by the Government from the http://www.judis.nic.in 4 Detaining Authority on the same day. The remarks were duly received on 27.09.2018. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 11.10.2018.
7. It is the contention of the petitioner that there was an inordinate delay of 15 days in submitting the remarks by the Detaining Authority, of which 6 days were Saturday and Sunday and government holidays and hence there was a delay of 9 days in submitting the remarks. Thereafter, there was yet another delay of 43 days in considering the representation, of which 17 days were Saturdays, Sundays and Government Holidays and hence there was yet another delay of 26 days in considering representation.
8. 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.
9. 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 representation made on behalf of the detenu would be sufficient to set aside the order of detention. http://www.judis.nic.in 5
10. 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.
11. In the subject case, admittedly, there is an inordinate and unexplained delay of 9 days in submitting the remarks by the Detaining Authority and 26 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.
12. In the result, the Habeas Corpus Petition is allowed and the order of detention in No.747/BCDFGISSSV/2018, dated 23.08.2018, passed by the second respondent is set aside. The detenu, namely Jayakanthan, son of Murugesan, aged 24 years, is directed to be released forthwith unless her detention is required in connection with any other case.
[C.T.S., J] [S.R.T., J]
21.01.2019
lpp/kmi
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C.T.SELVAM, J
and
S.RAMATHILAGAM, J
lpp/kmi
To
1.The Secretary to the Government,
Home Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai.
3. The Public Prosecutor,
High Court, Madras.
H.C.P.No.2139 of 2018
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21.01.2019
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