Madras High Court
Petchiammal vs The State Of Tamilnadu on 3 June, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
H.C.P.(MD) No.1483 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.06.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
H.C.P.(MD) No.1483 of 2023
Petchiammal ... Petitioner
-vs-
1.The State of Tamilnadu,
Rep by its Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2.The District Collector and District Magistrate,
Thoothukudi District,
Thoothukudi.
3.The Superintendent of Prison,
Central Prison,
Madurai, Madurai District. ... 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 leading to the detention of the
petitioner's husband namely Ajay Madasamy @ Madasamy, S/o.Sanmugaiah,
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H.C.P.(MD) No.1483 of 2023
aged about 41 years vide detention order dated 04.08.2023 made in H.S(M)
Confdl.No.105/2023 passed by the second respondent and quash the same and
consequently direct the respondents to produce the body or person of the detenu
now detained at Central Prison, Madurai before this Court and set him at liberty.
For Petitioner : Mr.R.Alagumani
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 wife of the detenu viz., Ajay Madasamy @
Madasamy, son of Sanmugaiah, aged about 41 years. The detenu has been
detained by the second respondent by his order in H.S(M).Confdl.No.105/2023,
dated 04.08.2023 holding him to be a "Drug Offender", as contemplated under
Section 2(e) of the 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 20.11.2023. According to the learned counsel for the petitioner, though the
representation is dated 20.11.2023, the same was received by the Government on
22.11.2023 and the rejection letter was sent to the detenu on 07.12.2023. There is
a delay of 7 days in considering the petitioner's representation. The said delay of
7 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
20.11.2023, which was received by the Government on 22.11.2023 and the
rejection letter was sent to the detenu on 07.12.2023. As per the proforma
submitted the by the learned Additional Public Prosecutor, there is a delay of 7
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 7 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 7 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
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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. In the result, the Habeas Corpus Petition is allowed and the order
of detention in H.S(M)Confdl.No.105/2023, dated 04.08.2023, passed by the
second respondent is set aside. The detenu, viz., Ajay Madasamy @ Madasamy,
aged about 41 years, son of Sanmugaiah, 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.]
03.06.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
am
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To:
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2.The District Collector and District Magistrate,
Thoothukudi District,
Thoothukudi.
3.The Superintendent of Prison,
Central Prison,
Madurai, Madurai District.
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.
am
03.06.2024
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