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H.C.P. No. 1089 of 2021

Decided On: 06.12.2021

Appellants: Bharathi
Respondent: The Secretary to the Government, Home Prohibition and Excise Department and Ors.

Hon'ble Judges/Coram:
P.N. Prakash and R. Hemalatha


R. Hemalatha, J.

1. The petitioner is the wife of the detenu, Saranraj, S/o. Selvaraj, aged 31 years. The detenu has been detained by the 2nd respondent by his order dated 01.07.2021 in C3/D.O. No. 44/2021, holding him to be a "BOOTLEGGER", as contemplated under Section 3(1) 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 respondents. We have also perused the records produced by the Detaining Authority.

3. 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.

4. The learned Additional Public Prosecutor filed his counter affidavit and strongly opposed the Habeas Corpus Petition. He would submit that though there was 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.

5. The Detention Order in question was passed on 01.07.2021. The petitioner made a representation on 16.07.2021. Thereafter, remarks were called for by the Government from the Detaining Authority on 20.07.2021. The remarks were duly received on 09.08.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 23.08.2021.

6. It is the contention of the petitioner that there was a delay of 20 days in submitting the remarks by the Detaining Authority, of which 7 days were Government Holidays and hence, there was an inordinate delay of 13 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 09.08.2021 and there was a delay of 14 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 5 days were Government Holidays, hence, there was inordinate delay of 9 days in considering the representation.

7. In Rekha Vs. State of Tamil Nadu [MANU/SC/0366/2011 : 2011 (5) SCC 244], the Hon'ble 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.

8. In Sumaiya Vs. The Secretary to Government [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.

9. In Tara Chand Vs. State of Rajasthan and others, reported in [MANU/SC/0252/1980 : 1980 (2) SCC 321], the Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the ........