Recently, the division bench of the Madras High Court set aside a preventive detention order after observing an excessive and unexplained delay of 14 days in considering the detainee's representation.

"10. In the subject case, admittedly, there is an inordinate and unexplained delay of 14 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed."

The division bench of Justice PN Prakash and Justice RMT Teeka Raman relied on Supreme Court decisions in Rekha v. State of Tamil Nadu, Tara Chand v. State of Rajasthan, and others, as well as the Madras High Court decision in Sumaiya v. The Secretary to Government, in which the court repeatedly held that an unexplained delay renders the detention illegal and is sufficient to set aside the detention order. In light of this, the court ordered the respondents to release the detainee immediately.

"8. 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 order of detention.

9. In Tara Chand vs. State of Rajasthan and others, reported in 1980 (2) SCC 321, the Honourable Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal."

The petitioner claimed that the Minister for Home, Prohibition, and Excise Department took 14 days to consider his representation after the Deputy Secretary dealt with it. Thus, it was argued that there was a flagrant violation of procedural safeguards, thereby invalidating the detention.

The Additional Public Prosecutor, on the other hand, contended that, while there was a delay in considering the representation, the detention order could not be quashed solely on that basis. Furthermore, no harm was done to the detainee that would jeopardize his rights under Articles 21 and 22 of the Constitution.

"The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. He would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to the learned Additional Public Prosecutor, 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."

The hearing was held in connection with a habeas corpus petition filed by the daughter of a detainee who was detained under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum-grabbers, and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).

Case Details

Lilly Pushpam v The Additional Chief Secretary and others