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Malarkodi v/s State of Tamil Nadu, Rep. by the Secretary, Home, Prohibition & Excise Department, Chennai & Another

    H.C.P. No. 2098 of 2017

    Decided On, 08 January 2018

    At, High Court of Judicature at Madras


    For the Petitioner: D. Gopikrishnan, Advocates. For the Respondents: V.M.R. Rajentran, Addl. Public Prosecutor.

Judgment Text

(Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relaing to the detention order in Memo No.649/BCDFGISSSV/2017, dated 24.10.2017 passed by the respondent under the Tamil Nadu Act 14 of 1982 and set aside the same and direct the respondent to produce the petitioner's son Karthik, S/o.Ganesan, aged about 25 years the detenu, now confined in Central Prision, Puzhal, Chennai before this Court and

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set the petitioner's son Karthik, S/o.Ganesan aged about 25 years the detenu herein at liberty.)

N. Sathish Kumar, J.

1. The petitioner is the mother of the detenu, namely, Karthik, S/o.Ganesan, male, aged about 25 years. The detenu has been detained by the second respondent by his order in No.649/BCDFGISSSV/2017, dated 24.10.2017, holding him to be a "Goonda", as contemplated under 2(f) 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 for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the record 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 were not considered on time and there was an inordinate and unexplained delay with regard to the same.

4. Though notice in this petition was issued on 10.11.2017, no counter affidavit has been filed by the State. However, the learned Additional Public Prosecutor opposed the Habeas Corpus Petition. He would submit that though there was a 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 24.10.2017. The petitioner made a representation dated 06.11.2017 and the same was received on 08.11.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 08.11.2017. The remarks were duly received on 13.11.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representations on 18.12.2017.

6. It is the contention of the petitioner that there was a delay of 5 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence, there was a delay of 3 days in submitting the remarks by the Detaining Authority. Thereafter, there was another delay of 35 days in considering the representation, of which 10 days were Government Holidays and hence there was an inordinate delay of 25 days in considering the representations.

7. In Rekha vs. State of Tamil Nadu, reported in 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, reported in 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 Government in considering the representation renders the very detention illegal.

10. In the subject case, admittedly, there is a delay of 3 days in submitting the remarks by the Detaining Authority and 25 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Habeas Corpus Petition is allowed and the order of detention in No.649/BCDFGISSSV/2017, dated 24.10.2017, passed by the second respondent is set aside. The detenu, namely, Karthik, S/o.Ganesan, male, aged about 25 years, is directed to be released forthwith unless his detention is required in connection with any other case. Given the nature of the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.

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