Madras High Court
Kamatchi vs The Secretary To Government on 10 September, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan, J.Sathya Narayana Prasad
H.C.P.(MD) No.737 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
and
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
H.C.P.(MD) No.737 of 2024
Kamatchi ... Petitioner/Mother of the detenu
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2.The District Collector/ District Magistrate/ Detaining Authority
Nagercoil,
Kanyakumari District.
3.The Additional Superintendent of Prison/Jailor,
District Jail,
Nagercoil. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus to produce the person or body of the
petitioner's son who is the detenu by name Arumugam, son of
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H.C.P.(MD) No.737 of 2024
Muthukumar, aged about 23 years before this Court by calling for the
records pertaining to the detention order dated 11.03.2024 made in
P.D.No.09/2024 on the file of the second respondent, quash the same and
set him at liberty.
For Petitioner : Mr.J.Senthil Kumaraiah
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
The petitioner is the mother of the detenu viz., Arumugam,
son of Muthukumar, aged about 23 years. The detenu has been detained
by the second respondent by his order in P.D.No.09/2024 dated
11.03.2024 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.
2. We have heard the learned counsel appearing for the
petitioner and the learned Additional Public Prosecutor appearing for the
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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 21.03.2024. According to the
learned counsel for the petitioner, though the representation is dated
21.03.2024, the same was received by the Government on 25.03.2024 and
the rejection letter was sent to the detenu on 18.04.2024 and the Ministry
dealt with the same on 06.04.2024. There is a delay of 9 days in Column
Nos.6 to 9A and 10 to 12 of the Proforma dated 13.08.2024 in considering
the petitioner's representation. The said delay of 9 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 21.03.2024, which was received by the Government
on 25.03.2024 and the rejection letter was sent to the detenu on
18.04.2024. As per the proforma submitted by the learned Additional
Public Prosecutor, there is a delay of 9 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
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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 9 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."
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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 9 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.
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11. In the result, the Habeas Corpus Petition is allowed and
the order of detention in P.D.No.09/2024 dated 11.03.2024, passed by the
second respondent is set aside. The detenu, viz., Arumugam, son of
Muthukumar, aged about 23 years, is directed to be released forthwith
unless his detention is required in connection with any other case.
[C.V.K., J.] [J.S.N.P., J.]
10.09.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
RM
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To:
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2.The District Collector/ District Magistrate/ Detaining Authority
Nagercoil,
Kanyakumari District.
3.The Additional Superintendent of Prison/Jailor,
District Jail,
Nagercoil.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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C.V. KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD, J.
RM
10.09.2024
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