IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 13/06/2005
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice AR.RAMALINGAM
Habeas Corpus Petition No.946 of 2004
and
H.C.M.P. No.125 of 2004
Jesintha Pandian ... Petitioner
-vs-
1. State of Tamilnadu, rep. by
Secretary to Government,
Prohibition and Excise
Department, Fort St. George,
Chennai 600 009.
2. District Collector and
District Magistrate of
Tuticorin District,
Tuticorin. ... Respondents
For Petitioner : Mr.V.K.Moorthy
For Respondents : Mr.Abudu Kumar Rajarathinam,
Government Advocate (Crl. Side).
Petition under Article 226 of the Constitution of India for the
issuance of a writ of Habeas Corpus to call for the records in Detention order
passed in HS (M) Confdl. No.17/2004 dated 25.7.2004 on the file of the 2nd
respondent herein and set aside the same and direct the respondents to produce
the body of the petitioner's husband Pasupathy Pandiyan, now confined in
Central Prison, Palayamkottai, before this Hon'ble Court and set him at
liberty.
:O R D E R
(Order of the Court was made by P.SATHASIVAM, J.)
– – – – –
Wife of the detenu, who was detained as Goonda by the impugned
detention order dated 25.07.2004, challenges the same in this Petition.
2. Though several grounds have been raised questioning the order of
detention, learned counsel appearing for the petitioner at the foremost
projected the delay in disposal of the representation dated 03.08.2004. With
reference to the said contention, learned Government Advocate furnished the
details regarding the disposal of the said representation.
3. It is seen that the representation dated 03.08.2004 was received
on 16.8.2004 and remarks were called for on 17.8.2004. The remarks were
received on 25.08.2004. With reference to the delay between 16.08.2004 and
25.08.2004, it is seen that the representation was received by the
Collectorate on 19.08.2004 and remarks were called for from the Sponsoring
Authority on the same day, that is, on 19.08.2004 , and the remarks were
received from the Sponsoring Authority on 20.08.2004. Thereafter, the same
were sent to the Government on 23.08.2 004. The file was submitted on
26.08.2004. The Under Secretary and the Deputy Secretary dealt with the same
on 30.08.2004 . The Minister for Prohibition and Excise dealt with the file
on 31.08.2004. Rejection letter was prepared on 03.09.2004.
4. The particulars furnished show that though rejection letter was
sent to the Superintendent of Central Prison for service on the detenu on
03.09.2004, the same was served on the detenu only on 13.09.2004, that is,
after a period of ten days. There is no proper explanation for such a huge
delay at the hands of the Superintendent, Central Prison.
5. In this regard, it is worthwhile to refer to the decision of a
Division Bench of this Court reported in 1999 (2) Crimes 287 (P. Chinnasamy
Thevar v. State of Tamil Nadu and another). While considering similar delay
in intimating the fact of disposal of the representation to the detenu, after
referring the Judgment of the Supreme Court, namely, AIR 1981 SC 1126 (Harish
Pahwa v. State of Uttar Pradesh), the Division Bench arrived at a conclusion
that non-explanation for the delay in intimating the fact of disposal to the
detenu would also result in rendering the detention invalid.
6. As stated above, in the absence of acceptable explanation for the
delay in intimating the fact of rejection to the detenu, we are in entire
agreement with the ratio laid down in the above referred decision and the same
is applicable to the case on hand.
7. Accordingly, the Habeas Corpus Petition is allowed and the
impugned order of detention dated 25.07.2004 is set aside. The detenu is
directed to be set at liberty forthwith from the custody unless he is required
in some other case or cause. Consequently, H.C.M.P. No.125 of 2004 is
closed.
Index: yes
Internet: Yes
To
1. State of Tamilnadu, rep. by
Secretary to Government,
Prohibition and Excise
Department, Fort St. George,
Chennai 600 009.
2. District Collector and
District Magistrate of
Tuticorin District,
Tuticorin.