Madras High Court
Syed Khaja Hussain vs The Addl. Chief Secretary To Government on 30 March, 2023
Bench: M.Sundar, M.Nirmal Kumar
H.C.P.No.1906 of 2022
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.1906 of 2022
Syed Khaja Hussain
S/o.Navas .. Petitioner /
friend of Detenu
Vs
1.The Addl. Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Police
Greater Chennai
3.The Superintendent of Prison,
Central Prison, Puzhal
Chennai - 66
4. The Inspector of Police, Crime
D-2 Anna Salai Police Station
Chennai .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus to call for the entire records in
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H.C.P.No.1906 of 2022
connection with the order of detention passed by the second respondent
dated 26.08.2022 in Memo No.251/BCDFGISSSV/2022 against the
petitioner's friend Venkatesan @ Venkat, male aged 26 years, son of
Manivannan, who is confined at Central Prison, Puzhal, Chennai and set
aside the same and direct the respondents to produce the detenu before this
Court and set him at liberty.
For Petitioner : Mr.S.Senthilvel
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
Assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by mother of detenu assailing a 'preventive detention order dated 26.08.2022 bearing reference BCDFGISSSV No.251/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
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2.Impugned detention order has been made under '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, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3.There is one adverse case. The ground case which is the sole substratum of the impugned detention order is Crime No.132 of 2022 on the file of D-2 Anna Salai Police Station for alleged offences under Sections 395 read with 397 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4.Mr.S.Senthilvel, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor assisted by Mr.M.Sylvester John, learned counsel for all respondents are before us. Page Nos.3/8 https://www.mhc.tn.gov.in/judis H.C.P.No.1906 of 2022
5.Though several grounds have been urged in the support affidavit, learned counsel for petitioner at the hearing exhorted one point in his campaign against the impugned detention order and that one point turns on delay in considering a representation sent qua impugned detention order.
6.Responding to the aforementioned submission, learned State Additional Public Prosecutor submitted to the contrary and placed before us a list of dates and the details of the same are as follows:
'Representation dated .. 28.01.2023
Representation received dated .. 31.01.2023
File submitted on dated .. 06.02.2023
Under Secretary dealt with on .. 06.02.2023
Deputy Secretary dealt with on .. 06.02.2023
Minister dealt with on .. 13.02.2023
Rejected letter prepared on .. 13.02.2023
Rejection letter sent to the detenu on .. 14.02.2022
Govt. Holidays falls on:
04.02.2023, 05.02.2023, 11.02.2023, 12.02.2023 S.No. Representation Column 6 to 7 Column 9 to 10 1. No. of days 05 06 2. No. of holidays 02 02 No. of delay days 03 04 Total 7 days delay Page Nos.4/8 https://www.mhc.tn.gov.in/judis H.C.P.No.1906 of 2022
7.We find that even if the intervening 4 public/Government holidays 04.02.2023, 05.02.2023, 11.02.2023 and 12.02.2023 are excluded, there is a delay of 7 days in considering the representation. We make it clear that the delay in considering the representation point in challenges to preventive detention orders cannot be decided quantitatively. It has to be decided qualitatively based on the facts, circumstances and the trajectory the representation has taken, in other words, it has to be decided on case to case basis. In the case on hand, we adopt such an approach and we find that 7 days delay vitiates the impugned detention order. We also hasten to make it clear that there can be no straight jacket formula in terms of number of days as regards this point is concerned and therefore, this order will not serve as precedent in all and every case.
8.Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 26.08.2022 bearing reference BCDFGISSSV No.251/2022 made by the second respondent is set aside and the detenu Thiru.Venkatesan @ Venkat, aged 26 years, son of Thiru.Manivannan, is Page Nos.5/8 https://www.mhc.tn.gov.in/judis H.C.P.No.1906 of 2022 directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (M.N.K.,J.)
30.03.2023
Index : Yes
Neutral Citation : Yes
Speaking Order
gpa
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal.
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1.The Addl. Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009.
2.The Commissioner of Police Greater Chennai
3.The Superintendent of Prison, Central Prison, Puzhal Chennai - 66
4. The Inspector of Police, Crime D-2 Anna Salai Police Station Chennai
5.The Public Prosecutor, High Court, Madras.
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