Madras High Court
Gowthami vs State Of Tamil Nadu on 30 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1567/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.11.2023
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
H.C.P.No.1567/2023
Gowthami .. Petitioner
vs.
1.State of Tamil Nadu
rep.by the Additional Chief Secretary to Government
Home, Prohibition and Excise Department,
Fort St George, Chennai 600 009.
2.The Commissioner of Police
The Greater Chennai City
Vepery, Chennai 600 007.
3.The Superintendent of Prison
Central Prison, Puzhal, Chennai 600066.
4.The Inspector of Police
M1 Madhavaram Police Station
Chennai. .. Respondents
https://www.mhc.tn.gov.in/judis
HCP.No.1567/2023
Prayer: 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 detention order in Memo No.290/BCDFGISSSV/2023 dated 06.07.2023
passed by the 2nd respondent under the Tamil Nadu Act 14 of 1982 and set
aside the same and direct the respondents to produce the petitioner's brother
Magesh @ Appu, son of Kalyanasundaram aged about 31 years the detenu
now confined in Central Prison, Puzhal, Chennai before this Court and set
him at liberty.
For Petitioner : Mr.D.Yuvaraj
For Respondents : Mr.E.Raj Thilak, APP assisted by
Mr.Aravind.C
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
(1)The Petitioner, sister of the detenu has filed this Petition challenging the
order of detention passed by the 2nd respondent against her brother, in
Memo No.290/BCDFGISSSV/2023 dated 06.07.2023, branding the
detenu as a "Goonda" under the Tamil Nadu Act 14 of 1982.
(2)Heard the learned counsel for the petitioner and learned Additional Public
Prosecutor appearing for the State.
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(3)Even though the learned counsel for the petitioner raised many grounds
in assailing the impugned order of detention in the petition, he confined
his arguments only to the ground of delay in considering the
representation of the detenu, dated 07.08.2023. According to the learned
counsel for the petitioner, the representation dated 07.08.2023, was
received by the Government on 11.08.2023 ; and though the file has been
dealt with by the Deputy Secretary on the same day on 14.08.2023, the
Minister concerned dealt with the file only on 21.08.2023 and the
Rejection Letter prepared and was sent to the detenu on the same day. It
is the further submission of the learned counsel that this inordinate delay
in considering the representation remains unexplained and the same
vitiates the detention order. In support of his contention, the learned
counsel for the petitioner relied on the judgment of the Hon'ble Supreme
Court in Rajammal vs. State of Tamil Nadu, reported in (1999) 1 SCC
(4)As per the submission of the learned counsel for the petitioner and on
perusal of the records, we find that, the representation of the detenu,
dated 07.08.2023, which was received by the Government on 11.08.2023
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; which was dealt with by the Deputy Secretary on 14.08.2023, was dealt
with by the Minister concerned only on 21.08.2023 and the Rejection
Letter was prepared on the same day. Thus, we find there is a
considerable delay of four days [after excluding the intervening holidays,
namely 15.08.2023, 19.08.2023 and 20.08.2023] in considering the
representation of the petitioner. This delay in considering the detenu's
representation remain unexplained.
(5)It is trite law that the representation should be very expeditiously
considered and disposed of with a sense of urgency and without avoidable
delay. Any unexplained delay in the disposal of the representation would
be a breach of the constitutional imperative and it would render the
continued detention impermissible and illegal. From the records produced,
we find that no acceptable explanation has been offered for the inordinate
delay of four days. Therefore, we have to hold that the delay has vitiated
further detention of the detenu.
(6)In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited
supra), it has been held as follows:
"It is a constitutional obligation of the Government to
consider the representation forwarded by the detenu without
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any delay. Though no period is prescribed by Article 22 of
the Constitution for the decision to be taken on the
representation, the words "as soon as may be " in clause (5)
of Article 22 convey the message that the representation
should be considered and disposed of at the earliest."
(7)As per the dictum laid down by the Supreme Court in above cited
Rajammal's case, number of days of delay is immaterial and what is to
be considered is whether the delay caused has been properly explained by
the authorities concerned. But, here the inordinate delay of four days, has
not been properly explained at all.
(8)Further, in a recent decision in Ummu Sabeena vs. State of Kerala -
2011 STPL (Web) 999 SC, the Hon'ble Supreme Court has held that the
history of personal liberty, as is well known, is a history of insistence on
procedural safeguards. The expression 'as soon as may be', in Article
22(5) of the Constitution of India clearly shows the concern of the makers
of the Constitution that the representation, made on behalf of the detenu,
should be considered and disposed of with a sense of urgency and without
any avoidable delay.
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(9)In the light of the above fact and law, we have no hesitation in quashing
the order of detention on the ground of delay on the part of the
Government in disposing of the representation of the detenu.
(10)Accordingly, the habeas corpus petition is allowed and the detention
order in Memo No.290/BCDFGISSSV/2023 dated 06.07.2023, passed by
the 2nd respondent is quashed. The detenu is directed to be set at liberty,
forthwith, unless his presence is required in connection with any other
case.
[SSSRJ] [SMJ]
30.11.2023
AP
Internet : Yes
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To
1.The Additional Chief Secretary to Government
State of Tamil Nadu
Home, Prohibition and Excise Department,
Fort St George, Chennai 600 009.
2.The Commissioner of Police
The Greater Chennai City
Vepery, Chennai 600 007.
3.The Superintendent of Prison
Central Prison, Puzhal, Chennai 600066.
4.The Inspector of Police
M1 Madhavaram Police Station
Chennai.
5.The Public Prosecutor,
High Court, Madras
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S.S.SUNDAR,J.
AND
SUNDER MOHAN, J.
AP
.
30.11.2023
https://www.mhc.tn.gov.in/judis
