(Prayer:Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus, to call for the records relating to the detention order passed by the 2nd respondent in his proceedings in M.H.S.Confdl.No.61 of 2016 dated 28.05.2016 and to quash the same and direct the respondents to produce the body of the detenu, Immanuel S/o.Muthavali, aged 34 years before this Court and set him at liberty, now detained at Central Prison, Palayamkottai, Tirunelveli District.)
S. Nagamuthu, J.
The petitioner is the father of the detenu viz., Mr.Immanuel, aged about 34 years. The detenu has been detained, as per the order of the second respondent, dated 28.05.2016, under Section 2(f) of the Tamilnadu Act 14 of 1982, branding him as Goonda . Challenging the same, the petitioner has come up with this Habeas Corpus Petition.
2. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. We have also perused the records carefully.
3. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the petitioner would mainly focus his argument on two grounds:
(i) The first ground is that there is violation of procedural safeguards, which are guaranteed under Articles 21 and 22 of the Constitution of India. The learned counsel would submit that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay. The learned counsel has relied on few Judgments of the Hon'ble Supreme Court. Based on the same, the learned counsel would plead for setting aside the detention order.
(ii) The second ground is that the subjective satisfaction arrived at by the Detaining Authority that there was a real possibility of the detenu coming out on bail, is totally baseless. He would submit that when there was no bail application at all filed by the detenu in the second adverse case, the question of the detenu coming out on bail does not arise. Thus, there was no real possibility at all for the detenu to come out on bail in the second adverse case, the learned counsel contended.
4. The learned Additional Public Prosecutor would, however, oppose this Habeas Corpus Petition. He would submit that though there was delay in considering the representation, on that score, the impugned detention order need not be interfered with, as on account of the said delay, no prejudice has been caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.
5. The learned Additional Public Prosecutor would further submit that the detenu was involved in various offences, including the offence under Section 302 IPC. He would further submit that there was every possibility for the detenu to move an application for bail in the second adverse case either before the Court of Sessions or before the High Court, in which, there was every possibility for him to come out on bail, because in similar cases, similarly placed persons were granted bail either by the Sessions Court or by the High Court. Hence, the subjective satisfaction arrived by the detaining authority is reasonable.
6. We have considered the above submissions.
7. In this case, the Detention Order was passed on 28.05.2016. As against the same, the petitioner made a representation on 12.06.2016. The remarks were called for by the Government from the Detaining Authority on 15.06.2016. The remarks were received on 24.06.2016. Thereafter, the Government considered the issue and passed the order rejecting the representation on 29.06.2016. It is the contention of the petitioner that there was delay of 7 working days in submitting the remarks by the Detaining Authority and there was delay of 2 working days on the part of the Government in considering the same.
8. Now, the question is as to whether on that score, the impugned order can be quashed.
9. In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble Supreme Court has held that the right to life and liberty of a person is protected, under Article 21 of the Constitution of India. The Hon'ble Supreme Court has further held that the procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu.
10. In Sumaiya Vs. The Secretary to Government, [2007 (2) MWN (Cr.) 145], a Division Bench of this Court has held that the unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the detention order.
11. In Tara Chand Vs. State of Rajasthan and others, [1980 (2) SCC 321], the Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. This dictum has been followed in several Judgments consistently by the Hon'ble Supreme Court as well as this Court.
12. Applying the said dictum laid down by the Hon'ble Supreme Court, if we look into the facts of the present case, undoubtedly, there is an inordinate and unexplained delay of 9 working days and thus, the impugned detention order is liable to be quashed on this sole ground.
13. Insofar as the second ground is concerned, if an application for bail is moved before any competent Court by the detenu, then only, the question of coming out on bail would arise. In such a situation, the Detaining Authority may be satisfied that there is a real possibility of the detenu coming out on bail based on the fact that in similar cases, similarly placed persons have been granted bail. But, in this case, there was no such bail application filed by the detenu in the second adverse case. There was no attempt also made by himself or any of his relatives to move any application for bail. When that be so, absolutely, there was no real possibility of the detenu coming out on bail in the second adverse case. Accordingly, the satisfaction arrived by the detaining authority is totally baseless. In such view of the matter, the detention order is liable to be set aside on this ground also.
14. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the second respondent, in his proceedings in M.H.S.Confdl.No.61/2016, dated 28.05.2016, is quashed. The detenu, namely, Immanuvel, S/o.Muthuvali, aged about 34 years, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.