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L. Thavamani v/s The Principal Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department, Chennai & Others

    H.C.P. (MD) No. 352 of 2022

    Decided On, 07 September 2022

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MRS. JUSTICE J. NISHA BANU & THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

    For the Petitioner: R. Yamuna, Advocate. For the Respondents: A. Thiruvadikumar, Additional Public Prosecutor.



Judgment Text

(Prayer: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records pertaining to the impugned Detention Order in C.No.18/Detention/C.P.O/T.C./2022 dated 02.02.2022 passed by the 2nd respondent is illegal and set aside the same by setting the detenue by name Prakashkumar, S/o.Lakshmanan, aged 23 years and set him at liberty, now detained at Central Prison, Trichy, Trichy District.)

J. Nisha Banu, J. & N. Anand Venkatesh, J.

1. The petitioner is the mother of the detenu viz., Prakashkumar, aged about 23 years, S/o.Lakshmanan. The detenu has been detained by the second respondent by his order in C.No.18/Detention/C.P.O/T.C/2022 dated 02.02.2022 holding him to be a "Goonda", as contemplated under Section 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 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 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.

5. The Detention Order in question was passed on 02.02.2022. The petitioner made a representation dated 26.02.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 02.03.2022. The remarks were duly received on 03.03.2022. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 20.04.2022.

6. It is the contention of the petitioner that the remarks were received on 03.03.2022 and there was a delay of 31 days, in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 16 days were a Government Holiday and hence, there was inordinate delay of 47 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 Government in considering the representation renders the very detention illegal.

10. In the subject case, admittedly, there is an inordinate and unexplained delay of 47 days in considering the representation by the Hon'ble Minister for Electricity, Prohibition and Excise Departmen

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t. 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 C.No.18/Detention/C.P.O/T.C/2022 dated 02.02.2022 passed by the second respondent is set aside. The detenu, viz., Prakashkumar, aged 23 years, S/o.Lakshmanan, is directed to be released forthwith unless his detention is required in connection with any other case.
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