Madras High Court
Fathima @ Laila vs State Of Tamil Nadu on 30 September, 2022
Author: J. Nisha Banu
Bench: J. Nisha Banu, N. Anand Venkatesh
HCP(MD)No.491 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.09.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
H.C.P.(MD)No.491 of 2022
Fathima @ Laila ... Petitioner / Mother of the Detenu
Vs.
1.State of Tamil Nadu,
Rep. by the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The District Collector and District Magistrate,
Thoothukudi District,
Thoothukudi.
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 H.S.(M) Confdl No.47 of 2022 dated
17.03.2022 on the file of the 2nd respondent herein and quash the same and
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HCP(MD)No.491 of 2022
direct the respondents to produce the detenu or body of the detenu namely
the petitioner's son, ie., Yasar Arabath, aged about 25 years, S/o.Raja @
Nagoor Hanifa, now detained at the Central Prison, Palayamkottai, before
this Court and set him at liberty forthwith.
For Petitioner : Mr.N.Pragalathan
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
J. NISHA BANU,J.
and N. ANAND VENKATESH,J.
The petitioner is the mother of the detenu viz., Yasar Arabath, aged about 25 years, S/o.Raja @ Nagoor Hanifa. The detenu has been detained by the second respondent by his order in H.S.(M) Confdl No.47 of 2022 dated 17.03.2022 holding him to be a "Drug Offender", as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.
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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.
4.The learned counsel appearing for the petitioner submitted that the detaining authority has mentioned in the order of detention that the detenu was remanded to judicial custody upto 07.03.2022, when he was produced before the learned Judicial Magistrate on 28.02.2022 and subsequently, remand was also extended upto 21.03.2022. There was absolutely no material for the remand order and its extension. Page 3 of 8 https://www.mhc.tn.gov.in/judis HCP(MD)No.491 of 2022
5.The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. 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.
6.The learned Additional Public Prosecutor, on instructions, submitted that the investigation was completed and final report was filed Special Court for the Essential Commodities Act Cases, Madurai, and it was taken on file in C.C.No.342 of 2022.
7.The Detention Order in question was passed on 17.03.2022. The petitioner made a representation dated 28.03.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 31.03.2022. The remarks were duly received on 07.04.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 11.04.2022.
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8.It is the contention of the petitioner that there was a delay of 6 days in submitting the remarks by the Detaining Authority, of which 2 days were Government holidays and hence, there was an inordinate delay of 4 days in submitting the remarks.
9.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.
10.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. Page 5 of 8 https://www.mhc.tn.gov.in/judis HCP(MD)No.491 of 2022
11.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 Government in considering the representation renders the very detention illegal.
12.In the subject case, admittedly, there is an inordinate and unexplained delay of 4 days in submitting the remarks by the Detaining Authority and we went through the paper book and only request for remand made by the respondent police is available and there is no remand order available in the paper book. Hence, the finding of the detaining authority recording the remand of the detenu and the remand extension is not supported by any material. Hence, it clearly reflects non-application of mind on the part of the detaining authority. It is yet another ground for interfering with the detention order. The impugned detention order is, therefore, liable to be quashed.
13.In the result, the Habeas Corpus Petition is allowed and the order of detention in H.S.(M) Confdl No.47 of 2022 dated 17.03.2022 passed by the second respondent is set aside. The detenu, viz., Yasar Arabath, aged Page 6 of 8 https://www.mhc.tn.gov.in/judis HCP(MD)No.491 of 2022 about 25 years, S/o.Raja @ Nagoor Hanifa, is directed to be released forthwith unless his detention is required in connection with any other case.
(J.N.B.,J.) (N.A.V.,J.)
30.09.2022
Index : Yes/No
Internet : Yes
sm
To:
1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.
3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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and N. ANAND VENKATESH,J.
sm H.C.P.(MD)No.491 of 2022 30.09.2022 Page 8 of 8 https://www.mhc.tn.gov.in/judis