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2022 Supreme(Mad) 872
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
J. Nisha Banu, N. Anand Venkatesh, JJ.
Kanthan – Petitioner
Versus
The State of Tamil Nadu, Rep. by its Principal Secretary to Government, Chennai & Others - Respondents
H.C.P.(MD)No. 1655 of 2021
Decided On : 06-09-2022
Advocate Appeared:
For the Petitioner:R. Pon Karthikeyan, Advocate.
For the Respondent: A. Thiruvadikumar, Additional Public Prosecutor
Procedural safeguards must be zealously watched and enforced, and any inordinate and unexplained delay in considering the representation renders the detention illegal.
Headnote:
Habeas Corpus - Detention under Tamil Nadu Act 14 of 1982 - Section 2(ggg) - 14 of 1982 - Summary
Fact of the Case:
The petitioner, father of the detenu, challenged the detention order of his son as a 'Sexual Offender' under Section 2(ggg) of Tamil Nadu Act 14 of 1982. The main argument focused on procedural safeguards violation.
Finding of the Court:
The court found an inordinate and unexplained delay in considering the petitioner's representation, which rendered the detention illegal.
Issues: Violation of procedural safeguards, delay in considering representation, and the impact of technology on teenagers' behavior.
Ratio Decidendi: The court relied on precedents such as Rekha vs. State of Tamil Nadu, Sumaiya vs. The Secretary to Government, and Tara Chand vs. State of Rajasthan to establish that any inordinate and unexplained delay in considering the representation renders the detention illegal.
Final Decision: The Habeas Corpus Petition was allowed, and the detention order was set aside. The detenu was directed to be released forthwith unless his detention was required in connection with any other case.
JUDGMENT :
J. Nisha Banu, N. Anand Venkatesh, JJ.
(Prayer : Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records relating to the detention order passed by the second respondent in Cr.M.P.No.14/2021 dated 06.10.2021 and quash the same and direct the respondents to produce the detenu Thiru.Lakshmanan, son of Kanthan, Male, aged about 18 years, who is detained at Central Prison, Madurai, before this Court and set him at liberty forthwith.)
1. The petitioner is the father of the detenu viz., Lakshmanan, son of Kanthan, aged about 18 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No.14/2021 dated 06.10.2021 holding him to be a "Sexual Offender", as contemplated under Section 2(ggg) 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 strongly opposed the Habeas Corpus Petition by filing his counter. 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 submitted that there are totally two accused persons in this case and the detenu has been arrayed as A1 and A2 is stated to be a juvenile. It was further submitted that the investigation has been completed and final report was filed and it was taken on file by the POCSO Court, Srivilliputhur in Spl.S.C.No.102 of 2022 and the matter stands posted on 13.09.2022.
6. The Detention Order in question was passed on 06.10.2021. The petitioner made a representation dated -Nil-. Thereafter, remarks were called for by the Government from the Detaining Authority on 22.10.2021. The remarks were duly received on 27.10.2021. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 29.11.2022.
7. It is the contention of the petitioner that there was a delay of 5 days in submitting the remarks by the Detaining Authority, of which 2 days were Government holidays and hence there was an inordinate delay of 3 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 27.10.2021 and there was a delay of 32 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, 11 days were a Government Holiday and hence, there was inordinate delay of 21 days in considering the representation.
8. 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.
9. 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 suf
