Madras High Court
Nilofar vs The Additional Chief Secretary To The ... on 4 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
H.C.P(MD)No.846 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
and
THE HON'BLE Ms.JUSTICE R.POORNIMA
H.C.P.(MD) No.846 of 2024
Nilofar
... Petitioner
Vs
1. The Additional Chief Secretary to the Government,
Home, Prohibition and Excise Department,
Fort St George,
Secretariat,
Chennai 600 009.
2. The District Collector and District Magistrate,
Thiruvaur District,
Thiruvaur.
3. The Inspector of Police,
Nannilam All Women Police Station,
Tiurvarur District,
Crime No.3/2024.
4. The Superintendent of Prison,
Central Prison,
Trichy District.
... Respondents
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1/8
H.C.P(MD)No.846 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Habeas Corpus, to call for the entire records relating to
the detention order in C.O.C.No.04/2024, dated 27.03.2024 and quash
the same and consequently direct the second respondent to produce the
body of person of the detenu namely Haja Najubudeen, S/o.Mohammed
Arif, aged 43 years, now detained as Sexual Offender at Central Prison,
Trichy and set him at liberty forthwith.
For Petitioner : Mr.R.L.Dhilipan Pandian
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor.
ORDER
The petitioner is the wife of the detenu viz., Haja
Najubudeen, S/o.Mohammed Arif, aged 43 years. The detenu has been
detained by the second respondent by his order in Detention Order in
C.O.C.No.04/2024, dated 27.03.2024 holding him to be a "Sexual
Offender", as contemplated under Section 2(ggg) of Tamil Nadu Act 14
of 1982. The said order is under challenge in this habeas corpus petition.
https://www.mhc.tn.gov.in/judis
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.
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 26.06.2024. According to the
learned counsel for the petitioner, though the representation is dated
26.06.2024, the same was received by the Government on 01.07.2024
and the rejection letter was sent to the detenu on 24.07.2024 There is a
delay of 5 days in Column Nos.6 to 9A and 10 to 12 of the Proforma
dated 03.10.2024 in considering the petitioner's representation. The said
delay of 5 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.
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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.
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 26.06.2024, which was received by the
Government on 01.07.2024 and the rejection letter was sent to the detenu
on 24.07.2024. As per the proforma submitted by the learned Additional
Public Prosecutor, there is a delay of 5 days in Column Nos.6 to 9A and
10 to 12 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
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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 5 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:
"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
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explained by the authorities concerned. But, in the instant case, the
inordinate delay of 5 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.
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 Detention Order in C.O.C.No.04/2024, dated
27.03.2024, passed by the second respondent is set aside. The detenu,
https://www.mhc.tn.gov.in/judis
viz., Haja Najubudeen, S/o.Mohammed Arif, aged 43 years, is directed to
be released forthwith unless his detention is required in connection with
any other case.
(C.V.K., J.) (R.P, J.)
04.10.2024
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
PNM
To
1. The Additional Chief Secretary to the Government,
Home, Prohibition and Excise Department,
Fort St George,
Secretariat,
Chennai 600 009.
2. The District Collector and District Magistrate,
Thiruvaur District,
Thiruvaur.
3. The Inspector of Police,
Nannilam All Women Police Station,
Tiurvarur District,
Crime No.3/2024.
4. The Superintendent of Prison,
Central Prison,
Trichy District.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN, J.
and
R.POORNIMA, J.
PNM
ORDER MADE IN
04.10.2024
https://www.mhc.tn.gov.in/judis
