S.No.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, M. NIRMAL KUMAR, JJ.
Udhayakumar – Appellant
Versus
State Rep. by the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai & Others – Respondents
H.C.P. No. 1646 of 2022
Decided On : 16-03-2023
Habeas Corpus - Preventive Detention - The court found that the delay in considering the representation against the preventive detention order violated the detenu's rights under Clause 5 of Article 22 of the Constitution of India, leading to the vitiation of the impugned detention order.
Fact of the Case:
The son 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 main ground for challenge was the delay in considering a representation sent regarding the impugned detention order.
Finding of the Court:
The court found that the delay of nine days, excluding public holidays, in considering the representation against the preventive detention order was not justified and violated the detenu's rights under Clause 5 of Article 22 of the Constitution of India. As a result, the impugned detention order was set aside, and the detenu was directed to be set at liberty forthwith.
Issues: The main issue was the delay in considering the representation against the preventive detention order, which led to the violation of the detenu's rights under the Constitution of India.
Ratio Decidendi: The delay in considering the representation against a preventive detention order must be dealt with on a case-by-case basis. In this case, the court found that the delay of nine days, excluding public holidays, was not justified and resulted in the violation of the detenu's rights under the Constitution of India.
Final Decision: The Habeas Corpus Petition was allowed, and the impugned detention order was set aside. The detenu was directed to be set at liberty forthwith.
JUDGMENT
(Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records in CPT No.43/2022 passed by the second respondent dated 12.08.2022 and set aside the same and directing the respondents to produce the detenue viz., Indira W/o.Ranganathan aged about 62 years who is now detained in Women Special Prison, Puzhal, Chennai before this Court and set the detenu at liberty forthwith.)
M. Sundar, J.
Captioned ''Habeas Corpus Petition'' [''HCP'' for the sake of brevity] has been filed by the son of detenu assailing a ''preventive detention order dated 12.08.2022 bearing reference CPT.No.43/2022'' [hereinafter ''impugned detention order'' for the sake of convenience and brevity]. To be noted, fifth 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 ''Bootlegger'' within the meaning of Section 2(b) of Act 14 of 1982.
3. There are two adverse cases. The ground case which is the sole substratum of the impugned detention order is Crime No.304 of 2022 on the file of Chengalpattu Prohibition Enforcement Wing for alleged offences under Sections 4(1)(aaa) 4(1-A) of Tamil Nadu Prohibition Act 1937 read with Sections 6 and 11 of Tamil Nadu Rectified Spirit Rules, 2000. 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.R.Ganesh, learned counsel representing 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 what can be culled out by this Court from this list is as follows:
Representation dated .. 17.08.2022
Representation received dated .. 22.08.2022
File submitted on .. 24.08.2022
Under Secretary dealt with on .. 24.08.2022
Deputy Secretary dealt with on .. 24.08.2022
Minister dealt with and file
received on .. 05.09.2022
Rejected letter prepared on .. 05.09.2022
Rejection letter sent to the detenu on .. 05.09.2022
Govt. Holidays falls on:28.08.2022, 03.09.2022, 04.09.2022
| S.No. | Representation | S.No.6 to 7 | S.No.9 to 10 |
|---|---|---|---|
| 1. | No. of days | 01 | 11 |
| 2. | No. of holidays | 00 | 03 |
|
| Total delay days | 01 | 08 |
| Total 9 days delay | |||
7. A careful perusal of the aforementioned list of dates brings to light that there are nine days delay in considering the representation. As regards making an effective representation against a preventive detention order, the same is a constitutional safeguard ingrained in Clause 5 of Article 22 of the Constitution of India. As this constitutional safeguard is hampered, the impugned detention order is vitiated. We also hasten to make it clear that there cannot be any straight jacket formula with regard to number of days within which a representation has to be disposed of. Delay in considering representation point has to be dealt with on a case to case basis. Considering the facts and circumstances of the case on hand and the nature of the matter, we find that this delay ha
AI
The delay in considering the representation against a preventive detention order must be justified and must not violate the detenu's rights under the Constitution of India.
The delay in considering a representation against a preventive detention order, which vitiates the impugned detention order.
The delay in considering the representation can vitiate a preventive detention order, and must be decided qualitatively based on the facts and circumstances of each case.
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 a preventive detention order can vitiate the impugned detention order if it infringes the detenu's rights.
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 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....
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