Madras High Court
Chermadurai vs The Additional Chief Secretary To ... on 29 October, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan
H.C.P.(MD) No.1063 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
and
THE HONOURABLE MS.JUSTICE R. POORNIMA
H.C.P.(MD) No.1063 of 2024
Chermadurai ... Petitioner
-vs-
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise,
Secretariat, Chennai- 600 009
2.The District Collector and District Magistrate,
Tirunelveli District,
Tirunelveli
3.The Superintendent of Prison
Central Prison,
Palayamkottai,
Tirunelveli District ... Respondents
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H.C.P.(MD) No.1063 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus calling for the records connected with the detention order
passed in M.H.S. Confdl. No.54 of 2024 dated 23.03.2024 on the file of the
second respondent herein and quash the same and direct the respondents to
produce the detenue or body of the detenue namely Chermadurai, aged about 28
years, S/o. Kumaresan, now detained at the Central Prison, Palayamkottai before
this Court and set him at liberty forthwith.
For Petitioner : Mr.N. Pragalathan
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
The petitioner is the detenu viz., Chermadurai, S/o. Kumaresan,
aged about 28 years. The detenu has been detained by the second respondent by
his order in M.H.S. Confdl. No.54 of 2024 dated 23.03.2024 holding him to be a
"Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982.
The said order is under challenge in this habeas corpus petition.
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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 17.08.2024. According to the learned counsel for the petitioner, though the
representation is dated 17.08.2024, the same was received by the Government on
21.08.2024 and the rejection letter was sent to the detenu on 09.09.2024 There is
a delay of 7 days in Column Nos.8 to 11 of the Proforma dated 10.10.2024 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.
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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
17.08.2024, which was received by the Government on 21.08.2024 and the
rejection letter was sent to the detenu on 09.09.2024. As per the proforma
submitted by the learned Additional Public Prosecutor, there is a delay of 7 days
in Column Nos.8 to 11 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
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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:
"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, 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
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 M.H.S. Confdl. No.54 of 2024 dated 23.03.2024 passed by the
second respondent is set aside. The detenu, viz.,Chermadurai, S/o. Kumaresan,
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aged about 28 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.]
29.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
aav
To:
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise,
Secretariat, Chennai- 600 009
2.The District Collector and District Magistrate,
Tirunelveli District,
Tirunelveli
3.The Superintendent of Prison
Central Prison,
Palayamkottai,
Tirunelveli District
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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https://www.mhc.tn.gov.in/judis
C.V. KARTHIKEYAN, J.
AND
R.POORNIMA, J.
aav
29.10.2024
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