Madras High Court
Nishanth vs The Secretary To Government on 16 August, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
2024:MHC:3039
HCP.No.1275 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :16.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
H.C.P.No.1275 of 2024
Nishanth ... Petitioner
Vs.
1 The Secretary To Government,
Home Prohibition And Excise Department,
Secretariat,
Chennai – 600 009
2 The District Collector and District Magistrate of
Kallakurichi, Kallakurichi District.
3 The Superintendent of Police,
Kallakurichi, Kallakurichi District.
4. The Superintendent of Police,
Special Prison for Women – Vellore,
Vellore District.
5. State rep. By its,
The Inspector of Police,
PEW Kallakurichi Police Station,
Kallakurichi District. ... Respondents
Page 1 of 6
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HCP.No.1275 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus, to call for the records relating to the petitioner's mother
detention under Tamil Nadu act 14 of 1982 vide detention order, dated 15.05.2024
on the file of the second respondent herein made in proceedings memo D.O.No.
C2/10/2024, quash the same as illegal and consequently direct the respondents
herein to produce the petitioner's mother namely Vijaya, W/o. Arumugam, aged 42
years before this court and set the petitioner's mother at liberty from detention, now
the petitioner's mother detained at Special Prison for Women, Vellore.
For Petitioner : Mr.W.Camyles Gandhi
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The order of detention passed by the 2nd respondent in proceedings Memo
D.O.No. C2/10/2024 dated 15.05.2024, is sought to be quashed in the present
Habeas Corpus Petition.
2. Heard the learned counsel for the petitioner and the learned Additional
Public Prosecutor appearing for the respondents.
3. The order of detention sought to be assailed and the fact as narrated would
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reveal that, there is a delay of seven days in considering the representation. The
delay in considering the representation and the period during which the detenue
was under detention would be construed as violation of the Constitutional
mandatory under Article 22 of Constitution of India and thus, the ground of delay
in considering the representation became fatal in the case of preventive detention.
4. 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. Therefore, we have to hold
that the delay has vitiated further detention of the detenu.
5. 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 any
delay. Though no period is prescribed by Article 22 of the
Constitution for the decision to be taken on the representation,
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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."
6.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 has not been properly
explained at all.
7. 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.
8. 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
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disposing of the representation of the petitioner.
9. Accordingly, the detention order passed by the second respondent, in
Memo D.O.No. C2/10/2024 dated 15.05.2024, is hereby set aside and the Habeas
Corpus Petition is allowed. The detenu viz., Vijaya, W/o. Arumugam, aged 42
years, now confined at Special Prison for Women, Vellore is directed to be set at
liberty forthwith unless he is required in connection with any other case.
[S.M.S., J.] [V.S.G., J.]
16.08.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
gd
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S.M.SUBRAMANIAM, J.
AND
V.SIVAGNANAM, J.
gd
To
1 The Secretary To Government,
Home Prohibition And Excise Department,
Secretariat,
Chennai – 600 009
2 The District Collector and District Magistrate of
Kallakurichi, Kallakurichi District.
3 The Superintendent of Police,
Kallakurichi, Kallakurichi District.
4. The Superintendent of Police,
Special Prison for Women – Vellore,
Vellore District.
5. State rep. By its,
The Inspector of Police,
PEW Kallakurichi Police Station,
Kallakurichi District.
6 The Public Prosecutor,
Madras High Court
16.08.2024
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