Madras High Court
Karpagajothi vs The Secretary To The Government on 4 January, 2024
Author: M.S.Ramesh
Bench: M.S.Ramesh
H.C.P.No.2434 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S.RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.2434 of 2023
Karpagajothi ... Petitioner
Vs.
1.The Secretary to the Government,
Home Prohibition & Excise Department,
Secretariat, Chennai-600 009.
2.The District Magistrate / District Collector,
Tiruppur District,
Tiruppur.
3.The Superintendent of Police,
Tiruppur,
Tiruppur District.
4.The Superintendent of Prison,
Central Prison - Coimbatore,
Coimbatore District.
5.State rep. by its
The Inspector of Police,
Avinashipalayam Police Station,
Tiruppur District. ... Respondents
Page 1 of 10
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H.C.P.No.2434 of 2023
Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for the issuance of a Writ of Habeas Corpus to call for the
entire records, relating to the petitioner's brother detention under Tamil Nadu
Act, 14 of 1982 vide detention order, dated 24.07.2023 on the file of the
second respondent herein made in proceedings Memo
Cr.M.P.No.30/GOONDA/2023, quash the same as illegal, and consequently,
direct the respondents herein to produce the petitioner's brother namely
Dineshkumar @ Karuppusamy, S/o.(Late) Veeramani, aged 23 years before
this Court and set the petitioner's brother at liberty from detention, now the
petitioner's brother detained at Central Prison, Coimbatore.
For Petitioner : Mr.W.Camyles Gandhi
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by
Mr.C.Aravind
ORDER
(Order of the Court was made by M.S.RAMESH, J.)
The petitioner, sister of the detenu Dineshkumar @ Karuppusamy,
S/o.(late) Veeramani, aged 23 years, has come forward with this petition
challenging the detention order passed by the 2nd respondent, dated
24.07.2023, slapped on her brother, branding him as "Goonda" under the
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
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Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand
Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14
of 1982].
2.Heard the learned counsel for the petitioner and the learned
Additional Public Prosecutor appearing for the respondents.
3.Even though the learned counsel for the petitioner raised many
grounds assailing the impugned order of detention in the petition, he
confined his arguments to the ground of delay in passing the detention order
and delay in considering the representation of the petitioner. Though the
detenu was arrested on 01.05.2023, the Detention Order was passed only on
24.07.2023. He contended that there is also a delay in considering the
representation of the petitioner, dated 07.12.2023. According to the learned
counsel for the petitioner, though the representation is dated 07.12.2023, the
same has been received by the Government only on 11.12.2023; the file has
been dealt with by the Deputy Secretary on 11.12.2023, and the Minister
concerned dealt with the file only on 15.12.2023, and the Rejection Letter
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was prepared on 18.12.2023, and sent to the detenu on the next day, i.e.,
19.12.2023. It is the submission of the learned counsel that the delay of 3
days 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 417.
4.Heard the learned Additional Public Prosecutor appearing for the
respondents.
5.The Hon'ble Supreme Court in the case of Sushantha Kumar Banik
Vs. State of Tripura and Others reported in AIR 2022 SC 4715, has dealt
with similar situation and has held in paragraph No.21 as follows:-
“In the present case, the circumstances indicate that
the detaining authority after the receipt of the
proposal from the sponsoring authority was indifferent
in passing the order of detention with greater
promptitude. The “live and proximate link” between
the grounds of detention and the purpose of detention
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stood snapped in arresting the detenu. More
importantly the delay has not been explained in any
manner & though this point of delay was specifically
raised & argued before the High Court as evident
from Para 14 of the impugned judgment yet the High
Court has not recorded any finding on the same.”
6.The Hon'ble Supreme Court was persuaded to allow the Appeal filed
before it mainly on the ground that delay in passing the Order of Detention
from the date of the proposal would snap the ''live and proximate link''
between prejudicial activities and the purpose of detention. Therefore,
failure on the part of the Detaining Authority in explaining such delay as in
the present case also is a valid ground for quashing the Detention Order.
7.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 07.12.2023, which was received by the Government on 11.12.2023
and further, the Minister concerned had dealt with the file of the detenu only
on 15.12.2023, and the Rejection Letter was prepared on 18.12.2023. Thus,
we find there is a considerable delay of 3 days in considering the
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representation of the petitioner. This delay of 3 days in considering the
detenu's representation remains unexplained.
8.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 3 days.
Therefore, we have to hold that the delay has vitiated further detention of the
detenu.
9.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
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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."
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 3 days has not been
properly explained at all.
10.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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11.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 petitioner.
12.Accordingly, the Habeas Corpus Petition is allowed, and the
detention order in Cr.M.P.No.30/Goonda/2023, dated 24.07.2023, passed by
the 2nd respondent is quashed. The detenu Dineshkumar @ Karuppusamy,
S/o.(late) Veeramani, aged 23 years, is directed to be set at liberty, forthwith,
unless his presence is required in connection with any other case.
[M.S.R., J] [S.M., J]
04.01.2024
Anu/pvs
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
https://www.mhc.tn.gov.in/judis
To
1.The Secretary to the Government,
Home Prohibition & Excise Department,
Secretariat, Chennai-600 009.
2.The District Magistrate / District Collector,
Tiruppur District,
Tiruppur.
3.The Superintendent of Police,
Tiruppur,
Tiruppur District.
4.The Superintendent of Prison,
Central Prison - Coimbatore,
Coimbatore District.
5.The Inspector of Police,
Avinashipalayam Police Station,
Tiruppur District.
6.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
M.S.RAMESH, J.
and
SUNDER MOHAN, J.
Anu/pvs
04.01.2024
https://www.mhc.tn.gov.in/judis
