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2013 DIGILAW 4012 (MAD)

A. Ramesh v. State of Tamil Nadu

2013-11-26

R.KARUPPIAH, V.DHANAPALAN

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JUDGMENT V. Dhanapalan, J. 1. The petitioner is the brother of the detenu, who has been branded as a "Goonda" as contemplated under the provisions of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers, and Video Pirates Act 1982 (Tamil Nadu Act 14 of 1982) and detained under order of the second respondent passed in D. No. 10/2012 dated 22-12-2012 has come before this Court to quash the order of detention passed by the second respondent. The detenu came to adverse notice in the following cases: S.no. Police Station Crime No. Sections of law 1. Alangudi P.S. 72/2012 379 and 511 IPC 2. Thirugokarnam Police Station 354/12 392 IPC 3. Pudukottai Town Police Station 351/12 392 IPC 4. Karmabakudi Police Station 372/12 457 and 511 IPC 2. The alleged ground case has been registered against the detenu by the Alangudi Police Station, in Crime No. 302 of 2012 for offences under Section 392, IPC. Aggrieved by the order of detention, the present Habeas Corpus Petition has been filed. 3. Though the learned counsel for the petitioner has raised several other grounds to assail the order of detention, he mainly focussed his arguments on the ground that there is an inordinate and unexplained delay in considering the petitioner's representation dated 31-5-2013, which has not been explained. Therefore, there is a deprivation of right guaranteed under Article 22(5) of the Constitution of India and as such, the impugned order is vitiated on the ground of delay. 4. We have heard the learned counsel for the petitioner and Mr. C. Mayilvahana Rajendran, learned Additional Public Prosecutor on the above submissions and we have also perused the records carefully. 5. In paragraph No. 5 of the grounds of detention, it has been stated as follows:-- 5. I am also aware that Thiru Vandu alias Prabakaran who is in remand in Alarigudi Police Station, Crime No. 302/2012 for offences under Section 392 of IPC, has file a bail application before the Judicial Magistrate Court, Alangudi in C.M.P. No. 5939/2012 which was dismissed on 18-12-2012 and filed another bail application before the Principal Sessions Court, Pudukottai in Cr. M.P. No. 2275/2012 which was dismissed on 21-12-2012. M.P. No. 2275/2012 which was dismissed on 21-12-2012. There is a real possibility of his (Vandu alias Prabakaran) coming out on bail, by filing a bail application for the above case before the appropriate Court, if he comes out on bail, he will indulge in such further activities, which will be prejudicial to the maintenance of the public order. Further the recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am dully satisfied that the said Vandu alias Prabakaran is also a Goonda and there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provisions of Tamil Nadu Act 14/1982. 6. On verification, it is seen that the petitioner has made a representation to the 1st respondent on 31-5-2013. However, the same was received by the respondents on 4-6-2013 and thereafter, remarks were called for on 5-6-2013, but remarks were received only on 17-6-2013. Thereafter, the Under Secretary and Deputy Secretary to Government dealt with the file on 18-6-2013 and the Minister for Electricity dealt with the file on 19-6-2013 and ultimately, the representation was rejected on 20-6-2013 and the rejection order was sent to the detenu on 20-6-2013. While examining the above position, it is evident that there is a delay of six days, after giving concession for intermittent Saturdays and Sundays, in considering the representation of the petitioner, which would vitiate the impugned detention order. 7. In similar circumstances, the Hon'ble Supreme Court, in the case of Rashid Kapadia v. Medha Gadgil, reported in (2012) 11 SCC 745 , has held as follows: 12. It can be seen from the above extracted portion that the first respondent called for the parawise remarks of the sponsoring authority (Customs Department) on 9-8-2011. However, the sponsoring authority responded to the inquiry of the first respondent on 26-8-2011 with a delay of fifteen days. The reasons for such delay have not been explained by the sponsoring authority, represented by the third respondent herein. There is nothing on the record placed before us which explains the abovementioned delay on the part of the third respondent's Department. 13. The reasons for such delay have not been explained by the sponsoring authority, represented by the third respondent herein. There is nothing on the record placed before us which explains the abovementioned delay on the part of the third respondent's Department. 13. It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the authority concerned as expeditiously as possible, is a constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the authorities on this aspect, except to take note of a couple of judgments where the principle is discussed in detail. 14. Therefore, we have no option but to come to the conclusion that the detention order cannot be sustained on the above mentioned ground alone and it is required to be, accordingly, set aside. 8. Taking note of the ratio laid down by the Hon'ble Supreme Court in the above judgment and considering the facts of the case, the impugned detention order passed by the second respondent, detaining the detenu, namely. Vandu alias Prabakaran. S/o. Arumaikannu Chettiar, made in Detention order No. 10/2012 dated 22-12-2012, is liable to be quashed. In the result, the Habeas Corpus Petition is allowed and the impugned order of detention passed by the second respondent in Detention order No. 10/2012 dated 22-12-2012 is quashed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. However, we make it clear that it is for the respondents to take note of the gravity of the offence and they shall prosecute the case before the trial Court without being influenced by this order. Likewise, the detenu shall not take any advantage of this order in any of his regular proceedings. Petition allowed.