J.Gowramma vs The State of Tamil Nadu & Anr.

The petitioner is the mother of the detenu, namely, Suresh, S/o.Jayachandran, male, aged about 28 years. The detenu has been detained by the

second respondent by his order in S.C.No.62/2017 dated 27.09.2017, holding him to be a ""Goonda"", as contemplated under 2(f) of Tamil Nadu

Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also

perused the record produced by the Detaining Authority.

Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel appearing for the petitioner would mainly focus his

argument on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. The learned counsel, by placing

authorities, submitted that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay

with regard to the same.

Though notice in this petition was issued on 12.10.2017, no counter affidavit has been filed by the State. However, the learned Additional

Public Prosecutor opposed the Habeas Corpus Petition. He would submit that though there was a delay in considering the representation, on that

score alone, the impugned detention order cannot be quashed. According to the learned Additional Public Prosecutor, no prejudice has been

caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

The Detention Order in question was passed on 27.09.2017. The petitioner made a representation dated 07.10.2017 and the same was

received on 10.10.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 10.10.2017. The remarks were

duly received on 09.11.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner''s representation on

08.12.2017.

It is the contention of the petitioner that there was a delay of 30 days in submitting the remarks by the Detaining Authority, of which 9 days were

Government Holidays and hence there was a delay of 21 days in submitting the remarks. Thereafter, there was another delay of 29 days in

considering the representation, of which 8 days were Government Holidays and hence there was an inordinate delay of 21 days in considering the

representation.

In Rekha vs. State of Tamil Nadu, reported in 2011 (5) SCC 244, the Honourable Supreme Court has held that the procedural safeguards are

required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of

the alleged activities undertaken by the detenu.

In Sumaiya vs. The Secretary to Government, reported in 2007 (2) MWN (Cr.) 145, a Division Bench of this Court has held that the

unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the order of

detention.

In Tara Chand vs. State of Rajasthan and others, reported in 1980 (2) SCC 321, the Honourable Supreme Court has held that any inordinate

and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.

In the subject case, admittedly, there is a delay of 21 days in submitting the remarks by the Detaining Authority and 21 days in considering the

representation. The impugned detention order is, therefore, liable to be quashed.

In the result, the Habeas Corpus Petition is allowed and the order of detention in S.C.No.62/2017 dated 27.09.2017, passed by the second

respondent is set aside. The detenu, namely, Suresh, S/o.Jayachandran, male, aged about 28 years, is directed to be released forthwith unless his

detention is required in connection with any other case. Given the nature of the case, this order will be communicated to the concerned Jail

Superintendent by the Registrar General of this Court via Fax.