Sumaiya v. The Secretary to Government,Prohibition and Excise Department, Government of Tami

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 06.07.2011CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIandTHE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition (MD) No.135 of 2011 Pakiyalakshmi... Petitionervs.

The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

The District Magistrate and District Collector, Virudhunagar District, Virudhunagar.

The Superintendent of Prison, Madurai Central Prison, Madurai... RespondentsPrayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records connected with the detention order of the Respondent No.2 in Cr.M.P.No.04/2011, dated 12.02.2011, quashing the same and directing the respondents to produce the body and person of thepetitioner's husband by name Kumar @ Madras Kumar, Son of Ponnusamy Thevar, aged about 31 years, detained in Madurai Central Prison, before this Courtand set him at liberty. For Petitioner : Mr.R.AlagumaniFor Respondents: Mr.P.Jothi, Addl. Public Prosecutor.

O R D E R(Order of the Court was made by P.JYOTHIMANI,J.)The petitioner, who is the wife of detenu, has filed this petition challenging the order of detention, dated 12.02.2011, clamped on her husband by the second respondent under the Tamil Nadu Prevention of Dangerous activities of Bootleggers, Drug Offenders, Forest offenders, Goondas, Immoral Traffic offenders, Sand Offenders, Slum Grabbers and VideoPirates Act, 1982, branding him as a "Goonda" and directing him to be detained at the Central Prison, Madurai. 2. Mr.R.Alagumani, learned counsel appearing for the petitioner would challenge the detention order mainly on the ground of delay in considering the representation made by the detenu. According to him, though the Government has called for remarks from the detaining authority on the representation of the detenu as early as on 18.02.2011, such remarks were received by the Government only on 25.02.2011, after a delay of seven days, https://hcservices.ecourts.gov.in/hcservices/ 2which vitiates the detention order. In support of his contention, here lied on the judgment of a Division Bench of this Court reported in (2007)(2) MWN (Cr.) 145 (DB) - Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, FortSt.George, Chenai-9 and another. 3. On the other hand, it is the contention of Mr.P.Jothi, learnedAdditional Public Prosecutor, that there has been some delay in furnishing the remarks by the detaining authority to the Government. It is his further submission that there were two holidays in between 18.02.2011 and25.02.2011 and if those holidays were excluded, there was only five days delay which is not an inexcusable delay. According to him, at the level of Under Secretary, Deputy Secretary as well as the Minister concerned, there has been no delay.

We have considered the rival contentions and given our anxious thought to the issue involved in the above case.

At the outset, it is to be stated that on a reference to the pro-forma submitted by the learned Additional Public Prosecutor, it is seen that the petitioner was detained on 12.02.2011 under the impugned order of detention passed by the second respondent. Thereafter, the petitioner has made a representation and the same has been received by the Government on17.02.2011. Remarks were called for from the detaining authority on the next day i.e. on 18.02.2011 and such remarks were received by the Government only on 25.02.2011 and there has been a delay of seven days in furnishing the remarks. It is brought to our notice that out of these seven days, the following days, namely 19.02.2011 and 20.02.2011 wereGovernment Holidays. Even after excluding the said two holidays, there has been a delay of five days in furnishing the remarks to the Government and this delay remains unexplained. In addition to that, when the matter was referred to the Minister on 28.02.2011, the rejection order was prepared only 02.03.2011 and there has been a delay of two days.

It is relevant to point out that the Hon'ble Apex Court has takena consistent stand that the idea of affording opportunity of making representation is that such representation should be considered expeditiously and in the absence of considering it at the earliest point of time, the constitutional guarantee given to a citizen in respect of his personal liberty is violated. In the cases referred to below, the Hon'bleSupreme Court has taken such a consistent view. "(i)Rashid sk. v. State of West Bengal, reported in1973(3) SCC 476;(ii)Ram Sukrya Mhatre v. R.D.Tyagi, reported in 1992 Supp. (3) SCC 65;(iii)Aslam Ahmed Zahire Ahmed Shaik v. Union of Indiaand others, reported in 1989 SCC (crl.) 554;(iv)Tara Chand v.State of Rajasthan, reported in 1980(2) SCC 321;(v)Raghavendra Singh vs. Superintendent, DistrictJail, reported in 1986(i) SCC 650;(vi)Rajammal v.State of Tamil Nadu, reported in 1999(1) SCC 417; https://hcservices.ecourts.gov.in/hcservices/ 3(vii)K.M.Abdulla Kunni v. Union of India, reported in1991 (1) SCC 476".

A Division of this Court in Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-9 reported in 2007 (2) MWN (cr.) 149 has held that unexplained delay should be considered to be fatal to the detention order. Therefore, the mere contention raised by the learned Additional PublicProsecutor that the delay occurred is only administrative delay is not acceptable for the reason that such administrative delay would not bridge the breach of fundamental right guaranteed to a citizen in the Constitutionof India. Therefore, on the ground of delay in considering the representation, the detention order is vitiated.