ORDER :

R.Subramanian, N.Sathish Kumar, JJ.

The petitioner is the father of the detenu, namely, Muthamilselvan, Son of Muthuvazhivittan aged about 25 years. The detenu has been detained by the second respondent by his order in S.R.No. 23/D.O/2021 dated 28.04.2021, holding him to be a "Drug Offender", as contemplated under Section 2(e) of the Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

2. We have heard the learned counsel 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 arguments 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 representations made by the petitioner were not considered in time and there was an inordinate and unexplained delay with regard to the same.

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 learned Additional Public Prosecutor would further submit that the detenue though charged for the serious offence of possessing commercial quantity of narcotic, he was enlarged on statutory bail, as the final report had not been filed in time. It is also stated that though the final report was ready and handed over to the Public Prosecutor appointed in this regard, the same has not been properly filed in time before the Court which resulted the accused being enlarged on statutory bail.

6. The Detention Order in question was passed on 28.04.2021. The petitioner made his representation on 02.08.2021 and the same was received on 04.08.2021 and on the same day, remarks were called for by the Government from the Detaining Authority and remarks were received on 17.08.2021. Thereafter, the Deputy Secretary has dealt with the representation on 18.08.2021 and the Minister for Electricity, Prohibition and Excise has dealt with the representation on 20.10.2021, in which, there is a delay of 41 days excluding the Government Holidays of 21 days. Ultimately, the petitioner's representation came to be rejected on 20.10.2021. Thus, there is a delay of 41 days in considering the petitioner's representations which remains unexplained.

7. 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.

8. 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.

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 present case, admittedly, there is an unexplained delay of 41 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Habeas Corpus Petition is allowed and the order of detention in S.R.No.23/D.O/2021 dated 28.04.2021, passed by the second respond