Madras High Court
Ashok vs The State Of Tamil Nadu on 28 February, 2020
Author: R.Subbiah
Bench: R.Subbiah, R.Pongiappan
H.C.P.No.2421 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
H.C.P.No.2421 of 2019
Ashok
S/o.Gopal ... Petitioner
Vs
1.The State of Tamil Nadu,
represented by its
Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai – 9.
2.The Commissioner of Police,
Greater Chennai,
Vepery, Chennai – 7. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Habeas Corpus calling for the entire records
leading to the detention of the petitioner's friend viz., Karthick
S/o.Srinivasan, male, aged about 24 years, who is presently lodged at
Central Prison, Puzhal, Chennai and detained under Act 14/82 as a
“Goonda” vide detention order dated 13.10.2019 on the file of second
respondent herein, made in BCDFGISSSV No.676/2019 and quash the
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same and consequently, direct respondents herein to produce the body
and person of the said detenu before this court and thereafter, set him at
liberty from Central Prison, Puzhal, Chennai.
For Petitioner : Mr.M.Rajavelu
For Respondents : Mr.R.Prathap Kumar
Additional Public Prosecutor
*****
ORDER
[Order of this Court was made by R.SUBBIAH, J] Petitioner is the friend of the detenu viz. Karthick S/o.Srinivasan, aged 24, who has been branded as a ‘Goonda’ under the Tamil Nadu Act 14 of 1982 and detained under order of second respondent passed in BCDFGISSSV No.676/2019 dated 13.10.2019.
2. The detenu came to adverse notice in the following cases:
Sl. Police Station and Crime No. Section of law No.
1. J-7 Velachery Police Station, 380 IPC Crime No.566/2019
2. J-7 Velachery Police Station, 380 IPC Crime No.604/2019 2/8 http://www.judis.nic.in H.C.P.No.2421 of 2019 Sl. Police Station and Crime No. Section of law No.
3. S-11 Tambaram Police Station, 461 and 380 IPC Crime No.690/2019
4. S-11 Tambaram Police Station, 379 IPC Crime No.733/2019
5. J-7 Velachery Police Station, 380 IPC Crime No.745/2019
6. J-3 Guindy P.S. 380 IPC Crime No.798/2019
7. J-3 Guindy P.S. 380 IPC Crime No.799/2019
8. S-11 Tambaram Police Station, 380 IPC Crime No.822/2019 The alleged ground case has been registered against the detenu in Crime No.828 of 2019 on the file of S-11 Tambaram Police Station, for offences u/s.341, 294(b), 323, 336, 427, 506(ii), 392 and 397 IPC.
Aggrieved by the order of detention, the present writ petition has been filed.
3. Heard learned counsel for petitioner and learned Additional Public Prosecutor appearing for respondents. Perused the materials on record.
4. Though several grounds have been raised in the Habeas Corpus 3/8 http://www.judis.nic.in H.C.P.No.2421 of 2019 Petition, learned counsel for 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. In support of his contention, learned counsel for petitioner relied on the judgment of the Hon'ble Apex Court in Rajammal vs. State of Tamil Nadu, [(1999) 1 SCC 417].
5. Learned Additional Public Prosecutor would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to 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 13.10.2019. The 4/8 http://www.judis.nic.in H.C.P.No.2421 of 2019 petitioner submitted the representation dated 25.10.2019 and the same was received on 29.10.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 29.10.2019. The remarks were duly received on 04.11.2019. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 29.11.2019.
7. It is the contention of the petitioner that there was an inordinate delay of 5 days, of which 2 were Government holidays, in submitting the remarks by the Detaining Authority. Thereafter, there was yet another delay of 21 days, of which 6 were Government holidays and hence, there was 18 days delay in considering the representation.
8. In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows:
‘It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on 5/8 http://www.judis.nic.in H.C.P.No.2421 of 2019 the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest.’
9. As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. Here, 18 days delay has not been properly explained at all.
10. Further, in a recent decision in Ummu Sabeena vs. State of Kerala [2011 STPL (Web) 999 SC], the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.
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11. In the light of the above fact and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the detenu.
Accordingly, the Habeas Corpus Petition is allowed and the detention order passed by the second respondent against the detenu viz., Karthick S/o.Srinivasan, aged 24, in BCDFGISSSV No.676/2019 dated 13.10.2019, is set aside. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
[R.P.S., J] [R.P.A., J]
28.02.2020
Index:yes/no
Internet:yes
gm
R.SUBBIAH, J
and
R.PONGIAPPAN, J
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gm
To
1.The Secretary to Government,
Home, Prohibition and Excise Department, Fort St.George, Chennai – 9.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai – 7
3.The Superintendent, Central Prison, Puzhal, Chennai.
4.The Public Prosecutor, High Court, Madras.
H.C.P.No.2421 of 2019
28.02.2020 8/8 http://www.judis.nic.in