Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 1478 (MAD)

Jeevitha v. State of Tamil Nadu, rep. by the Secretary, Home, Prohibition and Excise Department

2020-09-11

N.KIRUBAKARAN, P.VELMURUGAN

body2020
ORDER : N. KIRUBAKARAN, J. PRAYER : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Habeas Corpus calling for the records relating to the detention order in C.No.11/G/IS/2020, dated 17.01.2020 passed by the 2nd respondent under the Tamil Nadu Act 14 of 1982 and set aside the same and direct the respondent to produce the petitioner's husband Subash son of Balan aged about 32 years, the detenu, now confined in Central Prison, Coimbatore before this Court and set the petitioner's husband Subash son of Balan aged about 32 years the detenu herein at liberty. The matter was heard through "Video Conference". 2. The Wife of the detenu has filed this Petition challenging the detention order passed by the Second Respondent in C.No.11/G/IS/2020, dated 17.01.2020 under the Tamil Nadu Act 14 of 1982. 3. Heard Mr. M. Subash, learned Counsel appearing for the Petitioner and Mr. R. Prathap Kumar, learned Additional Public Prosecutor appearing for the Respondents. 4. It is seen from the records that the representation sent on behalf of the detenu has not been considered within time frame and there is a delay of 9 days in considering and disposing of the representation. 5. In the decision in "C. Muthuvali Vs. The Principal Secretary to Government, Home Prohibition and Excise Department, Government of Tamil Nadu, Secretariat, Chennai - 600 009" reported in "[(2017) (1) MWN (Cr.) 270 (DB)]" it has been held that an unexplained delay of nine working days on the part of the Government in considering the representation rendered the detention illegal. Another Division Bench of this Court in "Samaiah Vs. The Secretary to Government" reported in "[(2007) (4) MWN (Cr.) 145]" has held that an unexplained delay of three days in disposal of the representation made by the detenu would be sufficient to set aside the detention order. 6. Further, a larger Bench of the Supreme Court in "Rekha Vs. The State of Tamil Nadu" reported in " 2011 (5) SCC 244 " has held that "Preventive detention is by nature repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). 6. Further, a larger Bench of the Supreme Court in "Rekha Vs. The State of Tamil Nadu" reported in " 2011 (5) SCC 244 " has held that "Preventive detention is by nature repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). However, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles". 7. Since there is an unexplained delay in considering the representation submitted by the detenu, the detention order passed by the second respondent is liable to be set aside. 8. Accordingly, the detention order passed by the Second Respondent in C.No.11/G/IS/2020, dated 17.01.2020 is quashed and this Habeas Corpus Petition is allowed. The detenu viz., Subash son of Balan aged about 32 years, now detained in Central Prison, Coimbatore is directed to be set at liberty forthwith unless his presence is required in connection with any other case.