Madras High Court
Salomi vs The Secretary To Government on 27 February, 2020
Author: R.Subbiah
Bench: R.Subbiah, R.Pongiappan
H.C.P.No.2508 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.02.2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
H.C.P.No.2508 of 2019
Salomi
W/o.Babu ... Petitioner
Vs
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai – 600009.
2.The Commissioner of Police,
Greater Chennai,
Vepery, Chennai. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Habeas Corpus calling for the records in
connection with the order of detention passed by second respondent in
BCDFGISSSV No.454 of 2019 dated 30.07.2019 against the petitioner's
husband viz., Babu, Male, aged about 32 years, S/o.Vasu, who is
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H.C.P.No.2508 of 2019
confined at Central Prison, Puzhal, Chennai and set aside the same and
direct respondents to produce the detenu before this Court and set him at
liberty.
For Petitioner : Mr.M.Illiyas
For Respondents : Mr.R.Prathap Kumar
Additional Public Prosecutor
*****
ORDER
[Order of this Court was made by R.SUBBIAH, J] Petitioner is the wife of the detenu viz. Babu S/o.Vasu, aged 32, 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.454 of 2019 dated 30.07.2019.
2. The detenu came to adverse notice in the following cases:
Sl. Name of the Police Station Section of law No. and Crime No.
1. V-4 Rajamangalam Police 380 IPC Station, Cr.No.826/2018
2. J-10 Chemmanchery Police 379 IPC Station, Cr.No.45/2019 2/8 http://www.judis.nic.in H.C.P.No.2508 of 2019 Sl. Name of the Police Station Section of law No. and Crime No.
3. J-10 Chemmanchery Police 379 IPC Station, Cr.No.46/2019
4. J-10 Chemmanchery Police 457 and 380 IPC Station, Cr.No.65/2019
5. J-10 Chemmanchery Police 341, 294(b), 323, Station, Cr.No.122/2019 392 and 506(ii) IPC The alleged ground case has been registered against the detenu in Crime No.390 of 2019 on the file of V-4 Rajamangalam Police Station, for offences u/s.341, 294(b), 323, 336, 397 and 506(ii) 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 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 3/8 http://www.judis.nic.in H.C.P.No.2508 of 2019 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 30.07.2019. The petitioner submitted the representation dated 08.11.2019 and the same was received on 11.11.2019. Thereafter, remarks were called for by the Government from the Detaining Authority on 11.11.2019. The remarks were duly received on 14.11.2019. Thereafter, the Government 4/8 http://www.judis.nic.in H.C.P.No.2508 of 2019 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 2 days, in submitting the remarks by the Detaining Authority. Thereafter, there was yet another delay of 11 days, of which 4 were Government holidays and hence, there was 9 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 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 5/8 http://www.judis.nic.in H.C.P.No.2508 of 2019 is to be considered is whether the delay caused has been properly explained by the authorities concerned. Here, 9 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.
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. 6/8 http://www.judis.nic.in H.C.P.No.2508 of 2019 Accordingly, the Habeas Corpus Petition is allowed and the detention order passed by the second respondent against the detenu viz., Babu S/o.Vasu, aged 32, in BCDFGISSSV No.454 of 2019 dated 30.07.2019, 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]
27.02.2020
Index:yes/no,
Internet:yes
gm
To
1.The Secretary to Government,
Home, Prohibition and Excise Department, Fort St.George, Chennai – 600009.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai.
3.The Superintendent, Central Prison, Puzhal, Chennai.
4.The Public Prosecutor, High Court, Madras.
7/8 http://www.judis.nic.in H.C.P.No.2508 of 2019 R.SUBBIAH, J and R.PONGIAPPAN, J gm H.C.P.No.2508 of 2019 27.02.2020 8/8 http://www.judis.nic.in