Madras High Court
S.Shiny vs The State Of Tamil Nadu on 26 April, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
H.C.P.(MD) No.19 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
H.C.P.(MD) No.19 of 2024
S.Shiny ... Petitioner
-vs-
1.The State of Tamil Nadu
rep.by the Additional Chief Secretary
to the Government
Home, Prohibition and Excise Department
Secretairat, Chennai-600 009
2.The District Collector and District Magistrate
Tirunelveli District, Tirunelveli
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 to call for the entire records in detention order in
M.H.S.Confdl No.70/2023, dated 06.07.2023, on the file of the second
respondent and quash the same and direct the respondents herein to produce
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H.C.P.(MD) No.19 of 2024
the body of the petitioner's son, namely, Febin Saju, son of Saji, aged about 26
years, now confined in 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
[Order of the Court was made by A.D.JAGADISH CHANDIRA, J.]
The petitioner is the mother of the detenu viz., Febin Saju, son of
Saji, aged about 26 years. The detenu has been detained by the second
respondent by his order in M.H.S.Confdl No.70/2023, dated 06.07.2023,
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.
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3. Though several grounds have been raised in the habeas corpus
petition, learned counsel for the petitioner focused mainly on the ground that
there is an unexplained delay in considering the representation of the
petitioner, dated 18.12.2023. According to the learned counsel for the
petitioner, though the representation is dated 18.12.2023, the same was
received by the Government on 28.12.2023 and the rejection letter was sent to
the detenu on 06.01.2024. There is a delay of three days in considering the
petitioner's representation. The said delay of three 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.
4. Learned Additional Public Prosecutor, on instructions,
submitted that after satisfying with the materials placed by the Sponsoring
Authority, the Detaining Authority has passed the impugned detention order
and there is no illegality or infirmity in the detention order. It is also stated
that even if there is any delay in disposal of the representation, it has not
caused any prejudice to the rights of the detenu and hence, prayed for
dismissal of the habeas corpus petition
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5. 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 28.12.2023
and the rejection letter was sent to the detenu on 06.01.2024. As per the
proforma submitted the by the learned Additional Public Prosecutor, there is a
delay of three days in considering the representation of the petitioner and we
find that the said delay remains unexplained.
6. 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 three
days. Therefore, we have to hold that the delay has vitiated further detention
of the detenu.
7. In the above cited decision of the Honourable Supreme Court in
Rajammal's case, it has been held as follows:
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"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."
8. 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 three
days has not been properly explained.
9. 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.
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10. In the light of the above discussion, 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 petitioner.
11. In the result, the Habeas Corpus Petition is allowed and the
order of detention in M.H.S.Confdl No.70/2023, dated 06.07.2023, passed by
the second respondent is set aside. The detenu, viz., Febin Saju, son of Saji,
aged about 26 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.]
26.04.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
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To:
1.The Additional Chief Secretary
to the Government,
Home, Prohibition and Excise Department,
State of Tamil Nadu,
Secretairat, Chennai-600 009.
2.The District Collector and District Magistrate,
Tirunelveli District, Tirunelveli.
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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A.D.JAGADISH CHANDIRA, J.
AND
K.RAJASEKAR, J.
krk
26.04.2024
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