Madras High Court
R.Selvaraj vs The Secretary To Government Of India on 17 December, 2018
Author: C.T.Selvam
Bench: C.T.Selvam, S.Ramathilagam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.12.2018
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
and
THE HONOURABLE Mrs.JUSTICE S.RAMATHILAGAM
H.C.P.No.2028 of 2018
R.Selvaraj
.. Petitioner
Vs.
1. The Secretary to Government of India,
Ministry of Home Affairs,
(Department of Internal Security)
North Block, New Delhi-110 001.
2. The Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
3. The Commissioner of Police/Detaining Authority,
Coimbatore City, Coimbatore.
.. Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a
Writ of Habeas Corpus, calling for the records relating to the order of detention
C.NO.03/NSA/IS/2018 dated, 26.08.2018 passed by the third respondent and to
quash the same and also to direct the detenu R.Sundarraj @ Sundar, S/O.
Ramasamy, who is presently detained in the Central Prison, Coimbatore to be
produced before this Hon`ble court and set at liberty.
For Petitioner : Mr.A.Saranraj
For Respondents : Mr.R.Prathap Kumar
Additional Public Prosecutor
***
http://www.judis.nic.in
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ORDER
[Order of the Court was made by C.T.SELVAM, J] Petitioner, who is the brother of the detenu herein, viz.R.Sundarraj @ Sundar, son of Ramasamy, aged about 37 years, challenges the order of detention passed by the third respondent under order in C.No.03/NSA/IS/2018, dated 14.05.2018
2. The ground case has been registered against the detenu in Cr.No.449/2018 on the file of Inspector of Police, C-2 Race Course Police Station, Coimbatore City for offences u/s 489(A) (B), (C), (D) IPC. The detention order has been passed by third respondent in C.No.03/NSA/IS/2018.
3. Though many grounds have been raised in the petition, the learned counsel appearing for the petitioner, confines his argument only in respect of non- application of mind on the part of the detaining authority in passing the order of detention.
4. Learned counsel appearing for the petitioner submitted that the detenu was surrendered in the ground case in Cr.No.449/2018 on 06.06.2018; whereas the detention order was passed on 26.08.2018, i.e. Nearly after a lapse of 80 days. This inordinate delay in passing of detention order would vitiate the same. In support of his contention, learned counsel for the petitioner placed reliance on the http://www.judis.nic.in 3 judgment of a Division Bench of this Court reported in 2005 MLJ (Crl.) 752 (Ramesh v. District Collector and District Magistrate, Tiruchirapalli District and another).
5. Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.
6. We have heard the learned counsel for both sides with regard to the facts.
7. A perusal of the grounds of detention as well as the detention order passed by the detaining authority would show that the Detention Order was passed on 26.08.2018. Further, the detenu was surrendered in the ground case as early as on 06.06.2018. This shows an inordinate delay of nearly 80 days in passing the detention order. There is no explanation forthcoming on the side of the respondents for this inordinate delay in passing the detention order. Learned counsel for the petitioner has rightly placed reliance on the decision in Ramesh's case (cited supra) wherein this Court has held as follows:
“....
3.It is brought to our notice by the learned Government advocate that the analyst report was received on 06.12.2014 and the http://www.judis.nic.in doctor has issued certificate on 07.12.2014. Even in the counter 4 affidavit filed by the first respondent, it is stated that the sponsoring authority has submitted his affidavit only on 15.01.2015. When the sponsoring authority is in possession of the analyst report and the doctor's report even on 06.12.2014 and 07.12.2014, there is no proper explanation for submitting his affidavit till 15.01.2015 for invoking the provisions of Tamil Nadu Act 14 of 1982. Even thereafter, the impugned detention order was passed only on 27.02.2015, i.e. After five weeks of receipt of the affidavit from the sponsoring authority. Though the detaining authority has filed a counter affidavit, there is no explanation for the undue delay in passing the impugned order.
4.In this regard, learned counsel for the petitioner relied on unreported decision of this Court rendered in H.C.P. No.1149 of 1995, dated 13.12.1995. In similar circumstances, after pointing out the unexplained delay between the date of submission of the affidavit by the sponsoring authority and the detention order, the Division Bench of this Court has concluded thus:
“Such delays tend to have an affect of snapping the link between prejudicial activity and passing of preventive orders.......”
8. In view of the above decision rendered by the Division Bench of this Court, this Court is of the view that the detention order is unsustainable in law on the ground of inordinate and unexplained delay in passing the detention order and the same is liable to be set aside.
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9. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in C.No.03/NSA/IS/2018 dated 26.08.2018 passed by the third respondent is set aside. The detenu viz., R.Sundarraj @ Sundar, son of Ramasamy, aged about 37 years, is directed to be released forthwith unless his presence is required in connection with any other case.
[C.T.S., J .] [S.R.T., J.]
17.12.2018
Internet : Yes
Speaking/Non-Speaking Order.
kmi
To:
1. The Secretary to Government of India,
Ministry of Home Affairs,
(Department of Internal Security)
North Block, New Delhi-110 001.
2. The Secretary to the Government,
Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
3. The Commissioner of Police/Detaining Authority, Coimbatore City, Coimbatore.
4. The Superintendent of Prison, Central Prison, Coimbatore.
5. The Joint Secretary, Public (Law and order) Department, Secretariat, Chennai – 600 009.
6. The Public Prosecutor High Court, Madras.
http://www.judis.nic.in 6 C.T.SELVAM, J and S.RAMATHILAGAM, J kmi H.C.P.No.2028 of 2018 17.12.2018 http://www.judis.nic.in