1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.07.2011 CORAM: THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI and THE HONOURABLE Mrs.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition (MD) No.133 of 2011 Mariyammal, W/o.Samuthiravel Thevar ... Petitioner vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Magistrate and District Collector, Virudhunagar District, Virudhunagar. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. ... Respondents Prayer: 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 entire records connected with the detention order of the Respondent No.2 in Cr.M.P.No.05/2011, dated 12.02.2011, quashing the same and setting the petitioner's son by name Karuthapandi, aged about 29 years, now detained in Madurai Central Prison, at liberty. For Petitioner : Mr.R.Alagumani For 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 mother of detenu, has filed this petition challenging the order of detention, dated 09.09.2010, clamped on her son by the 2nd respondent under the Tamil Nadu Prevention of Dangerous activities of Bootleggers, Drug Offenders, Forest offenders, Goondas, Immoral Traffic offenders, Sand Offenders, Slum Grabbers and Video Pirates 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 https://hcservices.ecourts.gov.in/hcservices/ 2 delay of seven days, which vitiates the detention order. In support of his contention, he relied 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, Fort St.George, Chenai-9 and another. 4.On the other hand, it is the contention of Mr.P.Jothi, learned Additional 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 and 25.02.2011 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. 5.We have considered the rival contentions and given our anxious thought to the issue involved in the above case. 6.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 12.02.20110 under the impugned order of detention passed by the 2nd respondent. Thereafter, the petitioner has made a representation and the same has been received by the Government on 17.02.2011. 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 were Government 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. 7.It is relevant to point out that the Hon'ble Apex Court has taken a 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'ble Supreme Court has taken such a consistent view. (i)Rashid sk. v. State of West Bengal, reported in 1973(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 India and 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, District Jail, reported in 1986(i) SCC 650; https://hcservices.ecourts.gov.in/hcservices/ 3 (vi)Rajammal v. State of Tamil Nadu, reported in 1999 (1) SCC 417; (vii)K.M.Abdulla Kunni v. Union of India, reported in 1991 (1) SCC 476. 8.A Division of this Court in 2007 (2) MWN (cr.) 149 - Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-9, has held that unexplained delay should be considered to be fatal to the detention order. Therefore, the mere contention raised by the learned Additional Public Prosecutor 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 Constitution of India. Therefore, on the ground of delay in considering the representation, the detention order is vitiated. 9.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 12.02.2011, passed by the 2nd respondent in his proceedings No.Cr.M.P.No.05/2011, is quashed. The detenu Karuthapandi is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar (C.S) To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Magistrate and District Collector, Virudhunagar District, Virudhunagar. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order in H.C.P.(MD)No.133 of 2011 Dated:05.07.2011 gb RJ/14.7.11 3p/5c https://hcservices.ecourts.gov.in/hcservices/