Madras High Court
Arunachalam vs The Principal Secretary To Government on 5 April, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
H.C.P.(MD) No.2 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
H.C.P.(MD) No.2 of 2024
Arunachalam ... Petitioner
-vs-
1.The Principal Secretary to Government
Home Prohibition and Excise Department
Secretariat, Chennai-9
2.The Commissioner of Police
Madurai, Madurai City
3.The Superintendent of Prison
Central Prison, Madurai ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the entire records in detention order No.
85/BCDFGISSSV/2023, dated 13.10.2023, on the file of the second
respondent and quash the same and direct the respondents herein to produce
_______________
Page 1 of 10
https://www.mhc.tn.gov.in/judis
H.C.P.(MD) No.2 of 2024
the body of the petitioner's son, namely, Velmurugan @ Doal, son of
Arunachalam, aged about 27 years, now confined in Central Prison, Madurai,
before this Court and set him at liberty forthwith.
For Petitioner : Mr.M.Chandrabose
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
[Order of the Court was made by A.D.JAGADISH CHANDIRA, J.]
The petitioner is the father of the detenu viz., Velmurugan @ Doal,
aged about 27 years. The detenu has been detained by the second respondent
by his order No.85/BCDFGISSSV/2023, dated 13.10.2023, 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.
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.
_______________
https://www.mhc.tn.gov.in/judis
3. Though several grounds have been raised in the habeas corpus
petition, learned counsel appearing for the petitioner would mainly focus his
arguments on the grounds of delay in passing the impugned detention order
after the arrest of the detenu and delay in considering the petitioner's
representation.
4. According to the learned counsel for the petitioner, there is an
inordinate delay between the arrest of the detenu and passing the impugned
detention order and in this case, the detenu was arrested on 02.09.2023, and
the impugned detention order came to be passed only on 13.10.2023, i.e.,
after a lapse of more than one month. This inordinate delay in passing the
detention order would vitiate the same. He further submitted that there is no
live and proximate link between the date of arrest and the date of the
detention order.
5. Further, according to the learned counsel for the petitioner,
though the representation is dated 18.12.2023, the same was received by the
Government on 20.12.2023 and the rejection letter was sent to the detenu on
05.01.2024 There is a delay of seven days in Column Nos.10 to 12 of the
_______________
https://www.mhc.tn.gov.in/judis
Proforma in considering the petitioner's representation. The said delay of
seven days in considering the representation remains unexplained and the
same vitiates the impugned detention order. In support of his contention,
learned counsel for the petitioner relied on the Judgment of the Honourable
Supreme Court in Rajammal vs. State of Tamil Nadu, reported in (1999) 1
SCC 417. Hence, on these grounds, the present impugned detention order is
also liable to be set aside.
6. Learned Additional Public Prosecutor appearing for the
respondents strongly opposed the habeas corpus petition by filing his counter.
He would submit that though there was a delay in passing the impugned
detention order and in considering the petitioner's representation, on that
score alone, it cannot be quashed. According to the learned Additional Public
Prosecutor, no prejudice has been caused to the detenu and therefore prays
for dismissal of the habeas corpus petition.
7. Though it has been stated by the respondents that collection of
details has caused the delay in passing the impugned detention order, a
perusal of the grounds of the detention order passed by the detaining
authority shows that there is only one adverse case against the detenu. The
_______________
https://www.mhc.tn.gov.in/judis
detenu was arrested in the ground case as early as on 02.09.2023 and the
detention order was passed on 13.10.2023. This shows an inordinate delay in
passing the detention order, which is also unexplained. The live and proximate
link between the arrest of the detenu and the need for passing the order of
detention has snapped.
8. In the case of Sushanta Kumar Banik vs. State of Tripura,
reported in 2022 SCC Online (SC) 1333, when there was an inordinate delay
from the date of proposal till passing of the detention order and likewise,
between the date of actual arrest and the date of detention order, the
Honourable Supreme Court has held that the live and proximate link, between
the grounds and the purpose of detention, stands snapped throwing a
considerable doubt on the genuineness of the requisite satisfaction of the
detaining authority in passing the detention order unless such delay is
satisfactorily explained and consequently making it invalid. The relevant
portion is extracted hereunder:-
"20. It is manifestly clear from a conspectus of
the above decisions of this Court, that the underlying
principle is that if there is unreasonable delay between
the date of the order of detention & actual arrest of the
detenu and in the same manner from the date of the
_______________
https://www.mhc.tn.gov.in/judis
proposal and passing of the order of detention, such
delay unless satisfactorily explained throws a
considerable doubt on the genuineness of the requisite
subjective satisfaction of the detaining authority in
passing the detention order and consequently render the
detention order bad and invalid because the “live and
proximate link” between the grounds of detention and
the purpose of detention is snapped in arresting the
detenu. A question whether the delay is unreasonable
and stands unexplained depends on the facts and
circumstances of each case."
9. Further, as per the submission of the learned counsel for the
petitioner and on perusal of the records, we find that the representation of the
petitioner is dated 18.12.2023, which was received by the Government on
20.12.2023 and the rejection letter was sent to the detenu on 05.01.2024. As
per the proforma submitted the by the learned Additional Public Prosecutor,
there is a delay of seven days in Column Nos.10 to 12 in considering the
representation of the petitioner and we find that the said delay remains
unexplained.
_______________
https://www.mhc.tn.gov.in/judis
10. 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 delay of seven
days. Therefore, we have to hold that the delay has vitiated further detention
of the detenu.
11. In the above cited decision of the Honourable Supreme Court
in Rajammal's case, it has been held as follows:
"It is a constitutional obligation of the Government to
consider the representation forwarded by the detenu
without 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."
_______________
https://www.mhc.tn.gov.in/judis
12. 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, in the instant case, the inordinate delay of seven
days has not been properly explained.
13. Further, in a recent decision in Ummu Sabeena vs. State of
Kerala-2011 STPL (Web) 999 SC, the Honourable 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.
14. In view of the above, as pointed out by the counsel for the
petitioner, the delay in passing the impugned detention order and in
considering the petitioner's representation has not been satisfactorily
explained, thereby vitiating and invalidating the detention order.
_______________
https://www.mhc.tn.gov.in/judis
15. In the result, the Habeas Corpus Petition is allowed and the
order of detention No.85/BCDFGISSSV/2023, dated 13.10.2023, passed by
the second respondent is set aside. The detenu, viz., Velmurugan @ Doal, son
of Arunachalam, aged about 27 years, is directed to be released forthwith
unless his detention is required in connection with any other case.
[A.D.J.C., J.] [K.R.S., J.]
05.04.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The Principal Secretary to Government,
Home Prohibition and Excise Department,
Secretariat, Chennai-9.
2.The Commissioner of Police,
Madurai, Madurai City.
3.The Superintendent of Prison,
Central Prison, Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
_______________
https://www.mhc.tn.gov.in/judis
A.D.JAGADISH CHANDIRA, J.
AND
K.RAJASEKAR, J.
krk
05.04.2024
_______________
https://www.mhc.tn.gov.in/judis
