Procedural safeguards and inordinate delay in considering representation can render a detention order illegal.

JUDGMENT :

P.N. Prakash, J.

(Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a writ of Habeas Corpus against the detention order dated 13.07.2020 passed by the second respondent in proceedings memo C.M.P.No.13/Goonda/2020/M1, directing respondents to produce the petitioner’s son detenu Rahul, S/o.Arumugam, aged 19 years, who is confined at Central Prison, Salem, before this Court and set him at liberty.)

1. The petitioner is the father of the detenu, Rahul, S/o.Arumugam, male, aged 19 years. The detenu has been detained by the second respondent by his order dated 13.07.2020 in proceedings memo C.M.P.No.13/Goonda/2020/M1 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 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 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 13.07.2020. The petitioner made a representation on 30.07.2020. Thereafter, remarks were called for by the Government from the Detaining Authority on 06.08.2020. The remarks were duly received on 29.09.2020. Thereafter, the Government considered the matter and passed the order rejecting the petitioner’s representation on 06.11.2020.

6. It is the contention of the petitioner that there was a delay of 54 days in submitting the remarks by the Detaining Authority, of which 17 days were Government Holidays and hence there was an inordinate delay of 37 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 29.09.2020 and there was a delay of 36 days in considering the representation by the Hon’ble Minister for Electricity, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which 13 days were Government Holidays, hence, there was inordinate delay of 23 days in considering the representation.

7. In Rekha vs. State of Tamil Nadu (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.

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 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.

10. In the subject case, admittedly, there is an inordinate and unexplained delay of 37 days in submitting the remarks by the Detaining Authority and unexplained delay of 23 days in consider