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HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, M. NIRMAL KUMAR, JJ.
Rani - Appellant
Versus
The Secretary to Government, Home, Prohibition & Excise Department, Chennai & Others - Respondents
H.C.P. No. 2706 of 2022
Decided On : 27-03-2023
Habeas Corpus Petition - Preventive Detention - The court set aside the impugned detention order on the basis of delay in considering a representation, emphasizing that the delay vitiates the detention order and cannot be decided quantitatively but qualitatively based on the facts and circumstances.
Fact of the Case:
The mother of the detenu filed a Habeas Corpus Petition challenging a preventive detention order made under the Tamil Nadu Prevention of Dangerous Activities Act, 1982. The detention order was based on the detenu being classified as a 'Goonda' due to alleged offenses under the Indian Penal Code.
Finding of the Court:
The court found that there was a delay of 7 days in considering the representation sent regarding the impugned detention order, and emphasized that the delay vitiates the detention order. The court allowed the Habeas Corpus Petition and set aside the impugned detention order, directing the detenu to be set at liberty.
Issues: The main issue was the delay in considering the representation sent regarding the impugned detention order.
Ratio Decidendi: The court held that the delay in considering the representation vitiates the detention order and cannot be decided quantitatively but qualitatively based on the facts and circumstances.
Final Decision: The court set aside the impugned detention order and directed the detenu to be set at liberty forthwith.
JUDGMENT
(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in connection with the detention order passed by the 2nd respondent in No.47/BCDFGISSSV/2022 dated 31.05.2022 against petitioner''s son, the detenu herein, now confined in Central Prison for Men, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu Thiru.Arunselvam, S/o. Late Panneerselvam, aged 22 years, before this Court and set him at liberty.)
M. Sundar, J.
1. Captioned ''Habeas Corpus Petition'' [''HCP'' for the sake of brevity] has been filed by mother of detenu assailing a ''preventive detention order dated 31.05.2022 bearing reference 47/BCDFGISSSV/2022'' [hereinafter ''impugned detention order'' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
2. Impugned detention order has been made under ''The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)'' [hereinafter ''Act 14 of 1982'' for the sake of convenience and clarity] on the premise that the detenu is a ''Goonda'' within the meaning of Section 2(f) of Act 14 of 1982.
3. There is no adverse case. The ground case which is the sole substratum of the impugned detention order is Crime No.119 of 2022 on the file of M-7 Manali New Town Police Station for alleged offences under Sections 341, 294(b), 307 and 506(ii) of ''The Indian Penal Code (45 of 1860)'' [hereinafter ''IPC'' for the sake of convenience and clarity] and subsequently altered into Section 302 of IPC . Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.A.Nirmal Kumar, learned counsel on record for petitioner and Mr.R. Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.M.Sylvester John, learned counsel for all respondents are before us.
5. Though several grounds have been urged in the support affidavit, learned counsel for petitioner at the hearing exhorted one point in his campaign against the impugned detention order and that one point turns on delay in considering a representation sent qua impugned detention order.
6. Responding to the aforementioned submission, learned State Additional Public Prosecutor submitted to the contrary and placed before us a list of dates and the details of the same are as follows:
''Representation dated
21.12.2022
Representation received date
22.12.2022
File submitted on
30.12.2022
Under Secretary dealt with on
30.12.2022
Deputy Secretary dealt with on
30.12.2022
Minister dealt with on
04.01.2023
Rejection letter prepared on
04.01.2023
Rejection letter sent to the detenu on
04.01.2023
Government Holidays Falls on:
24.12.2022, 25.12.2022, 31.12.2022 and 01.01.2023''
S.No.
Representation
Column 6 to 7
Column 9 to 10
1.
No. of holidays
07
04
2.
No. of holidays
02
02
No. of delay days
05
02
Total 7 days delay
7. We find that even if the intervening 04 public/Government holidays 24.12.2022, 25.12.2022, 31.12.2022 and 01.01.2023 are excluded, there is a delay of 7 days in considering the representation. We make it clear that the delay in considering the representation point in challenges to preventive detention orders cannot be decided quantitatively. It has to be decided qualitatively based on the facts, circumstances and the trajectory the representation has taken, in other words, it has to be decided on case to case basis. In the case on hand, we adopt such an approach and we find that 7 days delay vitiates the impugned detention order. We also hasten to make it clear that there can be no straight jacket formula in
AI
Delay in considering a representation regarding a preventive detention order can vitiate the detention order and must be decided qualitatively based on the facts and circumstances.
The delay in considering the representation point in challenges to preventive detention orders cannot be decided quantitatively, but has to be decided qualitatively based on the facts, circumstances,....
The delay in considering representation in preventive detention cases cannot be decided quantitatively but qualitatively based on the facts and circumstances of each case.
The delay in considering the representation against preventive detention orders must be decided qualitatively based on the facts and circumstances, and a delay of four days was found to vitiate the i....
The delay in considering the representation point in challenges to preventive detention orders cannot be decided quantitatively but qualitatively based on the facts, circumstances, and the trajectory....
The delay in considering the representation against preventive detention orders must be decided qualitatively based on the facts and circumstances, and a delay of four days was found to vitiate the i....
The delay in considering a representation against a preventive detention order, which vitiates the impugned detention order.
The delay in considering the representation against a preventive detention order can vitiate the impugned detention order if it infringes the detenu's rights.
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