Madras High Court
Shakila vs State Of Tamil Nadu Represented By on 22 April, 2022
Bench: P.N.Prakash, A.A.Nakkiran
H.C.P.No.1977 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.04.2022
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mr. Justice A.A.NAKKIRAN
H.C.P.No.1977 of 2021
Shakila .. Petitioner
Vs.
1.State of Tamil Nadu represented by
The Secretary to Government,
Prohibition and Excise Department,
Fort St.George,
Chennai-600 009.
2.The District Collector and District Magistrate,
Villupuram District,
Villupuram.
3.The Superintendent of Police,
Villupuram District,
Villupuram.
4.The Jail Superintendent,
Central Prison,
Cuddalore.
5.The Inspector of Police,
Prohibition and Excise Wing,
Gingee Police Station,
Villupuram District. .. Respondents
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H.C.P.No.1977 of 2021
Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus to call for the records relating to the
detention order dated 23.10.2021 passed by the second respondent in
Rc.No.C2/28447/2021 in TPDA No.3756 and to quash the same and
direct the respondents herein to produce the petitioner's husband viz.,
Kodukkankuppamkumar @ Kumar, son of Ganesan, aged about 37
years, residing at No.3/1, Main Road, Kodukkankuppam, Melmalyanur
Taluk, Villupuram District, who is presently undergoing detention in the
Central Prison, Cuddalore, as a Bootlegger, under Section 3(1) of the
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 under Section 3(1) and 3(2) of the Act 1982,
(Tamil Nadu Act 14 of 1982) before this Court and set him at liberty
forthwith.
For Petitioner : Mr.C.Prabakaran
For Respondents : Mr.M.Babu Muthumeeran
Addl. Public Prosecutor
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H.C.P.No.1977 of 2021
ORDER
[Made by P.N.PRAKASH, J.] The petitioner is the wife of the detenu Kodukkankuppamkumar @ Kumar, son of Ganesan, aged about 37 years. The detenu has been detained by the second respondent by his order in Rc.No.C2/28447/2021 dated 23.10.2021, holding him to be a "Bootlegger", as contemplated under Section 2(b) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.
2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. 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 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. Page 3 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1977 of 2021
4. 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.
5. The Detention Order in question was passed on 23.10.2021. The petitioner made a representation on 28.10.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 09.11.2021. The remarks were duly received on 17.11.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 30.11.2021.
6. It is the contention of the petitioner that there was a delay of 8 days in submitting the remarks by the Detaining Authority, of which, 2 days were Government Holidays and hence there was an inordinate delay of 6 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 17.11.2021 and Page 4 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1977 of 2021 there was a delay of 13 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 4 days were Government Holidays, hence, there was an inordinate delay of 9 days in considering the representation.
7. 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.
8. 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.
9. 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 Page 5 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1977 of 2021 Government in considering the representation renders the very detention illegal.
10. In the subject case, admittedly, there is an inordinate and unexplained delay of 6 days in submitting the remarks by the Detaining Authority and unexplained delay of 9 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed.
In the result, the Habeas Corpus Petition is allowed and the order of detention in Rc.No.C2/28447/2021 dated 23.10.2021, passed by the second respondent is set aside. The detenu, viz., Kodukkankuppamkumar @ Kumar, son of Ganesan, aged about 37 years, is directed to be released forthwith unless his detention is required in connection with any other case.
(P.N.P.,J.) (A.A.N.,J.) 22.04.2022 Index: Yes/No nsd Page 6 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1977 of 2021 To
1.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-600 009.
2.The District Collector and District Magistrate, Villupuram District, Villupuram.
3.The Superintendent of Police, Villupuram District, Villupuram.
4.The Jail Superintendent, Central Prison, Cuddalore.
5.The Inspector of Police, Prohibition and Excise Wing, Gingee Police Station, Villupuram District.
6.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai – 9.
7.The Public Prosecutor, High Court, Madras.
Page 7 of 8 https://www.mhc.tn.gov.in/judis H.C.P.No.1977 of 2021 P.N.PRAKASH,J.
and A.A.NAKKIRAN,J.
nsd H.C.P.No.1977 of 2021 22.04.2022 Page 8 of 8 https://www.mhc.tn.gov.in/judis