Madras High Court
Eswari vs The Additional Chief Secretary To ... on 16 August, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
HCP.No.1467 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.1467 of 2024
Eswari ... Petitioner
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department, Secretariat,
Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai Office of the Commissioner of Police,
Vepery, Chennai – 600 007.
3.The Superintendent of Prison,
Central prison, Puzhal, Chennai.
4.The Inspector of Police,
K-2 Ayanavaram Police Station,
Chennai District ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus, to call for the the records in connection with the order of
detention passed by the second respondent dated 16.05.2024 in
B.C.D.F.G.I.S.S.S.V.No.523 OF 2024 against the petitioner's son Karunakaran,
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HCP.No.1467 of 2024
son of Ravi aged about 21 years who is confined at Central Prison, Puzhal,
Chennai and set aside the same and direct the respondents to product the detenu
before this court and set him at liberty
For Petitioner : Mr.G.Vasudevan
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 2 nd respondent in proceedings Memo
BCDFGISSSV.No.523 of 2024 dated 16.05.2024, 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 reveal that, there is a delay of three 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
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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.More importantly, there is no adverse case against the detenue. In the
absence of any serious adverse cases, the essential requirement to invoke Act 14 of
1982 is missing. Application of mind on the part of the Detaining Authority is of
paramount importance and the Authority while invoking Act 14 of 1982 must
ensure that there is likelihood of causing breach of public order and detention order
cannot be passed merely on account of number of cases registered against the
detenue or otherwise. The very purpose and object of Act 14 of 1982 cannot be
allowed to be defeated by passing an order of detention in an mechanical manner.
5.In the present case, there is no adverse case against the detenue. The
Authority have not established any likelihood of causing breach of public order
which is an essential criteria for the purpose of detaining a person under preventive
detention laws.
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.
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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.
7. 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,
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
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authorities concerned. But, here the inordinate delay has not been properly
explained at all.
9. 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.
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. Accordingly, the detention order passed by the 2nd respondent, in
BCDFGISSSV.No.523 of 2024 dated 16.05.2024, is hereby set aside and the
Habeas Corpus Petition is allowed. The detenu viz., Karunakaran, son of Ravi
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aged about 21 years who is confined at Central Prison, Puzhal, Chennai, 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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To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department, Secretariat,
Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai Office of the Commissioner of Police,
Vepery, Chennai – 600 007.
3.The Superintendent of Prison,
Central prison, Puzhal, Chennai.
4.The Inspector of Police,
K-2 Ayanavaram Police Station,
Chennai District
5.The Public Prosecutor,
Madras High Court
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S.M.SUBRAMANIAM, J.
AND
V.SIVAGNANAM, J.
gd
16.08.2024
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