Madras High Court
Jannath Yasmin vs The Secretary To Government Of India on 27 July, 2023
Bench: M.S.Ramesh, M.Nirmal Kumar
HCP(MD)No.1870 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.07.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.1870 of 2022
Jannath Yasmin .. Petitioner / Wife of the Detenu
Vs.
1.The Secretary to Government of India,
Ministry of Home Affairs,
(Department of Internal Security),
North Block,
New Delhi – 110 001.
2.The Principal Secretary to Government,
Public (Law & Order-F) Department,
Secretariat,
Chennai – 600 009.
3.The District Magistrate and District Collector,
Ramanathapuram District,
Ramanathapuram.
4.The Superintendent of Prison,
Central Prison,
Madurai.
5.The Inspector of Police,
Kenikkarai Police Station,
Ramanathapuram District. .. Respondents
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HCP(MD)No.1870 of 2022
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus, calling for the entire records in connection
with the detention order against the detenu in Cr.M.P.No.01/NSA/2022
dated 17.10.2022 on the file of the Respondent No.3 and quash the same as
illegal and direct the respondents to produce the body or person of the
petitioner's husband namely Abdul Azeez, aged about 33 years, S/o.Sathik
Batcha, now confined at Central Prison, Madurai before this Court and set
him at liberty forthwith.
For Petitioner : Mr.M.Seenisulthan
For R-1 : Mr.ARL.Sundaresan
Additional Solicitor General of India
assisted by
Mr.M.Karthikeya Venkitachalapathy
Central Government Standing Counsel
For R-2 to R-5 : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH,J.) The petitioner is the wife of the detenu viz., Abdul Azeez, aged about 33 years, S/o.Sathik Batcha. The detenu has been detained by the third respondent by his order in Cr.M.P.No.01/NSA/2022 dated 17.10.2022, in Page 2 of 10 https://www.mhc.tn.gov.in/judis HCP(MD)No.1870 of 2022 exercise of the powers under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as 'Act'). The said order is under challenge in this Habeas Corpus Petition.
2. We have heard the learned counsel appearing for the petitioner, the learned Additional Solicitor General of India appearing for the first respondent and the learned Additional Public Prosecutor appearing for the respondents 2 to 5. 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 following grounds:
(i) The detaining authority has relied upon the order passed in Crl.O.P.No.14838/2018 dated 20.06.2018 and came to the conclusion that in a similar case bail has been granted and that there is likelihood of the detenu released on bail. The learned counsel submitted that the detaining authority was aware of the fact that the detenu filed bail application in the ground case and the same was dismissed. The learned counsel for the petitioner Page 3 of 10 https://www.mhc.tn.gov.in/judis HCP(MD)No.1870 of 2022 submitted that the order relied upon by the detaining authority is an anticipatory bail order and hence, it is not similar. Thus, there is non application of mind on the part of the detaining authority; and
(ii) 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 dated 04.11.2022 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 detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.
5. On carefully going through the detention order, it is seen that the similar case bail order relied upon by the detaining authority in Crl.O.P.No. 14838/2018 dated 20.06.2018, is an anticipatory bail order under Section Page 4 of 10 https://www.mhc.tn.gov.in/judis HCP(MD)No.1870 of 2022 438 Cr.P.C, whereas, the detaining authority has come to the subjective satisfaction that the detenu is likely to come out on bail, in view of the similar case. This apart, the similar case relates to certain offences of delivering inflammatory speeches creating enmity between the people of two States and against the Central and State Governments in connection with the formation of Cauvery Management Board, whereas, the facts involved in the present case does not have such serious overt acts attributed to the detenu. Hence, the order that was relied upon by the detaining authority cannot be considered to be an order passed in a similar case.
6. Further, Article 22(5) of the Constitution of India and Section 8(1) of the Act provides that the detaining authority shall communicate to the detenu the grounds on which the order has been made within five days from the date of detention and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
7. In the present case, the detention order in question was passed on 17.10.2022 and the petitioner herein had made a representation dated 04.11.2022 in regional language to the State Government, which was Page 5 of 10 https://www.mhc.tn.gov.in/judis HCP(MD)No.1870 of 2022 received by them on 08.11.2022. The State Government had forwarded the representation vide letter dated 10.11.2022 to the Ministry of Home Affairs, New Delhi, which was received by them on 16.11.2022. On 17.11.2022, the Ministry had sent a wireless message to the State Government seeking for english translated copy with a reminder on 22.11.2022. The translated copy of the representation along with para wise comments were received by the Ministry on 22.11.2022. Thereafter, the comments were duly forwarded to the concerned Departments and ultimately, the Union Home Secretary had rejected the representation on 26.11.2022. Hence, there was no delay on the part of the Ministry of Home Affairs in considering the petitioner's representation.
8. However, the representation dated 04.11.2022 made by the petitioner to the State Government was received by them on 08.11.2022 and was considered only on 06.12.2022 and reply was sent to the petitioner on 07.12.2022. During the course of consideration of the representation, there was a delay of 22 days, after excluding the number of holidays. Page 6 of 10 https://www.mhc.tn.gov.in/judis HCP(MD)No.1870 of 2022
9. 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.
10. 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.
11. 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.
12. In the subject case, admittedly, there is an inordinate and unexplained delay of 22 days in considering the representation by the State Government.
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13. On both the grounds, the detention order suffers from non application of mind and the same is liable to be interfered with by this Court. The impugned detention order is, therefore, liable to be quashed.
14. In the result, the Habeas Corpus Petition is allowed and the order of detention in Cr.M.P.No.01/NSA/2022 dated 17.10.2022 passed by the third respondent is set aside. The detenu, viz., Abdul Azeez, S/o.Sathik Batcha, aged about 33 years, is directed to be released forthwith unless his detention is required in connection with any other case.
(M.S.R.,J.) (M.N.K.,J.)
27.07.2023
NCC : Yes / No
Index : Yes / No
Lm/Yuva
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HCP(MD)No.1870 of 2022
To
1.The Secretary to Government of India,
Ministry of Home Affairs,
(Department of Internal Security),
North Block,
New Delhi – 110 001.
2.The Principal Secretary to Government,
Public (Law & Order-F) Department,
Secretariat,
Chennai – 600 009.
3.The District Magistrate and District Collector, Ramanathapuram District, Ramanathapuram.
4.The Superintendent of Prison, Central Prison, Madurai.
5.The Inspector of Police, Kenikkarai Police Station, Ramanathapuram District.
6.The Joint Secretary to Government, Public (Law and Order), Fort St.George, Chennai.
7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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and M.NIRMAL KUMAR,J.
Lm/Yuva H.C.P.(MD)No.1870 of 2022 27.07.2023 Page 10 of 10 https://www.mhc.tn.gov.in/judis