Madras High Court
Tamilselvi vs State Of Tamil Nadu on 22 December, 2020
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram, T.Krishnavalli
H.C.P.(MD) No.850 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
H.C.P.(MD) No.850 of 2020
Tamilselvi ... Petitioner
-vs-
1.State of Tamil Nadu
Rep.by the Additional Chief Secretary to Government
Home, Prohibition and Excise Department
Fort St.George, Chennai-600 009
2.The District Collector and District Magistrate
Tirunelveli District, Tirunelveli
3.The Superintendent of Prison
Central Prison
Palayamkottai, Tirunelveli ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India, to
issue a writ of habeas corpus calling for the entire records connected
with the detention order passed in M.H.S.Confdl No.49/2020 dated
27.08.2020 on the file of the second respondent herein and quash the
same and direct the respondents to produce the detenu or body of the
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http://www.judis.nic.in
H.C.P.(MD) No.850 of 2020
detenu namely the petitioner's husband i.e., Ajay alias Sudalaikkannu,
aged about 23 years, son of Velu, now detained at the Central Prison,
Palayamkottai, before this Court and set him at liberty forthwith.
For Petitioner : Mr.N.Pragalathan
For Respondents : Mr.R.Anandharaj
Additional Public Prosecutor
ORDER
(Order of the Court was made by K.KALYANASUNDARAM, J.) This habeas corpus petition has been filed by the wife of the detenu, namely, Ajay alias Sudalaikkannu, son of Velu, aged about 23 years, against the detention order in M.H.S.Confdl No.49/2020 dated 27.08.2020, passed by the second respondent, branding him as “Goonda” as contemplated under Section 2(f) of Tamil Nadu Act, 14 of 1982.
2. Though several grounds have been raised challenging the impugned detention order, Mr.N.Pragalathan, learned counsel for the petitioner, would mainly contend that the impugned order of detention is liable to be set aside on the grounds of arbitrary action taken by the 2/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020 Authorities for clamping the detention order only as against few accused, leaving the other accused, who are also similarly placed and delay in considering the petitioner's representation.
3. Per contra, Mr.R.Anandharaj, learned Additional Public Prosecutor, on instructions, submitted that the detention order has been passed by the second respondent after arriving at the subjective satisfaction based on the cogent and relevant materials placed by the Sponsoring Authority and to prevent the detenu from indulging in similar activities in future. It is further submitted that the delay in disposal of the representation has not caused any prejudice to the detenu and hence, prayed for dismissal of the habeas corpus petition.
4. We have heard the rival submissions and perused the materials placed on record.
5. In the instant case, it is an admitted fact that there are totally five accused, however, detention orders have been passed only as against two accused, when three other accused are also placed in same footing. In Chandra v. The Secretary to Government [2010 (1) MWN 3/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020 (Cr.) 129], it has been held that the Authorities cannot exercise their power arbitrarily for picking and choosing only some of the accused to clamp the order of detention. The relevant paragraph would run thus:
“10. It is the further contention raised on behalf of the petitioners that the equal protection clause shall be attracted against the orders of preventive detention as well. But, this court is of the considered view that the equal protection clause cannot be stretched further to be made applicable for quashing the orders of detention for not assigning reasons in the grounds of detention for the exclusion of others and selection of the detenus alone when the detaining authority choses the persons among the accused in the ground case to be clamped with the order of detention under the preventive detention law. However, we are of the view that there is some force in the contention that the exercise of power by the detaining authority to pass orders of detention against the detenus concerned in these HCPs alone can be challenged as being arbitrary. The arbitrariness pointed out on behalf of the petitioners is that though the detaining authority chose to consider the detenus concerned in these HCPs alone as a class out of the nine accused persons, who were arraigned as such in the first and third adverse cases and the ground case, there was no reasonable basis for such a classification to treat 4/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020 them differently from the rest of the persons. The said argument has been advanced on the ground that no reason has been assigned in the grounds of detention for selecting the above said three persons alone for being termed as goondas. We are of the considered view that it shall not be necessary on the part of the detaining authority to assign any reason in the grounds of detention as to why the other persons are not chosen for being detained under the preventive detention law. Suffice to state the satisfaction that the detenus are to be termed goondas and their presence at large will be detrimental to the maintenance of public order. But the same does not mean that the court while dealing with HCP challenging the order of detention, cannot go into the question of arbitrariness in such classification. When the order of detention is challenged on the ground of arbitrariness based on the classification of the detenus alone from the rest of the accused, it shall be the duty of the detaining authority and the State to establish reasonable basis of such classification to rule out arbitrariness. In this case, though the detaining authority cannot be found fault with for not assigning reason in the grounds of detention for selecting the detenus concerned in these HCPs alone for clamping the orders of detention leaving out the other accused in the ground case and 5/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020 the adverse cases, there is failure on the part of the respondents herein to state the basis of such classification atleast before the court in these HCPs. The failure on the part of the respondents to assign reasons in their counter affidavit in these petitions as to why the detenus alone were selected for detention as goondas leaving out the other six persons will show that the exercise of the statutory power by the detaining authority was arbitrary especially when the left out persons were placed on equal footing with Murugan and Murali, the detenus concerned in H.C.P.Nos.2393 and 2404 of 2009 and found implicated in more number of cases than Rajendran, the detenu concerned in H.C.P.No.2405 of 2009. Hence we are convinced that orders of detention challenged in these HCPs are vitiated on the ground of arbitrariness.” In this case also, no explanation has been given by the respondents for passing the detention order only against some of the accused.
6. Further, it is seen from the proforma furnished by the learned Additional Public Prosecutor that the representation of the petitioner, dated 05.09.2020, was received on 11.09.2020. Remarks were called for on the same day i.e.11.09.2020 and it was received on 6/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020 24.10.2020. The Deputy Secretary dealt with the matter on the same day 24.10.2020. The concerned Minister dealt with the matter on 04.11.2020 and the representation came to be rejected on 06.11.2020. It is seen that in between 24.10.2020 and 04.11.2020, there was a delay of six days, after excluding the Government Holidays of four days, in considering the petitioner's representation.
7. At this juncture, it is useful to refer the decision of the Honourable Apex Court in the case of Rajammal vs. State of Tamil Nadu and another, reported in 1999 (1) SCC 417, wherein the Apex Court has observed and held that it is for the Authority concerned to explain the delay, if any, in disposal of the representation and if any delay was caused on account of nay indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner.
8. In the case on hand, as stated supra, the delay of six days has not been properly explained by the respondents. Hence, in our considered view, the detention order is liable to be set aside on the grounds as stated above by following the decisions cited supra. 7/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020
9. In fine, the Habeas Corpus Petition is allowed. The order of detention in M.H.S.Confdl No.49/2020 dated 27.08.2020, passed by the second respondent, is set aside. Consequently, the detenu, namely, Ajay alias Sudalaikkannu, son of Velu, aged about 23 years, who is now detained at Central Prison, Palayamkottai, is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case.
[M.K.K.S.,J.] [T.K.,J.] 22.12.2020 Index : Yes / No Internet : Yes / No Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
krk 8/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020 To:
1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Fort St.George, Chennai-600 009.
2.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.
3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
9/10 http://www.judis.nic.in H.C.P.(MD) No.850 of 2020 K.KALYANASUNDARAM, J.
and T.KRISHNAVALLI, J.
krk H.C.P.(MD) No.850 of 2020 22.12.2020 10/10 http://www.judis.nic.in