Madras High Court
S.Gunavathi vs The Secretary To The Government on 23 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
HCP.No.1791 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
H.C.P.No.1791 of 2024
S.Gunavathi ... Petitioner
Vs.
1.The Secretary to the Government,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai – 600 009.
2.The Commissioner of Police
Greater Chennai,
Vepery, Egmore,
Chennai.
3.The Inspector of Police, [L & O]
V-5, Thirumangalam Police Station,
Chennai.
4.The Superintendent of Prison,
Central Prison – II,
Puzhal, Chennai. ... Respondents
Page 1 of 7
https://www.mhc.tn.gov.in/judis
HCP.No.1791 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, directing the respondents to produce the
Petitioner's son Mr.Ganesh Kumar @ Paambu Ganesh, S/o.Selvam, Male
aged about 40 years and now confined at Central Prison-II Puzhal
Chennai, before this Hon'ble Court and set him at liberty forthwith by
setting aside the order of Detention bearing BCDFGISSSV.No.726/2024
dated 27.06.2024 on the file of the Second respondent and pass such
further or other order or orders as may deem fit and proper circumstances
of the case and thus render justice.
For Petitioner : Mr.A.Thirumaran
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 2nd respondent in proceedings
BCDFGISSSV.No.726/2024 dated 27.06.2024 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..
https://www.mhc.tn.gov.in/judis
3. The order of detention sought to be assailed and the fact as
narrated would reveal that, there is a delay of thirteen 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 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. 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 inordinate
delay. Therefore, we have to hold that the delay has vitiated further
detention of the detenu.
https://www.mhc.tn.gov.in/judis
5. 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."
6.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 has not been properly
explained at all.
7. 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',
https://www.mhc.tn.gov.in/judis
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.
8. 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.
9.Accordingly, the detention order passed by the second respondent
in BCDFGISSSV.No.726/2024 dated 27.06.2024, is hereby set aside and
the Habeas Corpus Petition is allowed. The detenu viz., Ganesh Kumar @
Paambu Ganesh, S/o.Selvam, Male, aged about 40 years, is now confined
at Central Prison-II, Puzhal, Chennai, is directed to be set at liberty
forthwith, unless his confinement is required in connection with any other
case.
10.It is needless to state that the bail application if any filed by the
detenue is to be considered on its own merits and in accordance with law.
https://www.mhc.tn.gov.in/judis
The prosecution side is at liberty to object bail application or to seek
conditions to be imposed if any required under the facts and
circumstances.
[S.M.S., J.] [V.S.G., J.]
23.10.2024
Index: Yes/No
Internet:Yes/No
Neutral Citation: Yes/No
ep
https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM, J.
AND
V.SIVAGNANAM, J.
ep
To
1.The Secretary to the Government,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai – 600 009.
2.The Commissioner of Police
Greater Chennai,
Vepery, Egmore,
Chennai.
3.The Inspector of Police, [L & O]
V-5, Thirumangalam Police Station,
Chennai.
4.The Superintendent of Prison,
Central Prison – II,
Puzhal, Chennai.
5.The Public Prosecutor,
Madras High Court.
23.10.2024
https://www.mhc.tn.gov.in/judis
