Ahmed Ismail v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.10.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1046 of 2007Ahmed Ismail.. PetitionerVs1. The State of Tamilnadu rep. by its Secretary to Government Prohibition and Excise Department Government of Tamilnadu Fort St. George, Chennai-9.2. The Commissioner of Police Chennai Police, Chennai... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus calling for the records of the detentionorder under in BDFGISSV.No. 234/2007 dated 4.6.2007 passed by theCommissioner of Police, Chennai Police, Chennai, the Second Respondentherein and set aside the same and direct the Respondent to produce thedetenu Ahamed Ismail Son of the Mohammed Yousuf now confined in CentralPrison, Puzhal, Chennai before this Honble Court and set the detenu Mr.Ahmed Ismail at liberty.For Petitioner:Mr.R.BalakrishnanFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The petitioner calls in question legality of the order of detention4.6.2007 passed by the second respondent ordering his detention under theprovisions of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Slum-Grabbers and Video Pirates Act, 1982 (in short “the Act”)branding him as a "Video Pirate". https://hcservices.ecourts.gov.in/hcservices/

2. The order of detention dated 4.6.2007 came to be passed based onthe complaint lodged by one P.Balasubramanian before the Inspector ofPolice, Video Piracy Cell Unit I, Ayanavaram, Chennai-23. The complainantis an investigator of the South Indian Music Company Association. Hereceived reliable information that pirated DVD/CDs of Tamil films, MP3 andobscene films are prepared with the help of CD writers at No.21/217, PuthuNagar, 8th Street, Bharathi Nagar and violating the Copy Rights Act 1957and requested to take action against the culprits. Based on hiscomplaint, a case was registered in Crime No.69/2007 under Section 51, 52(A), 63 and 68 of Copy Right Act and 292(2) of I.P.C. and afterinvestigation, the detenu was arrested on 29.5.2007. 3. The second respondent, taking note of this case as a ground caseand having satisfied that there is a compelling necessity to detain himin order to prevent him from indulging in the activities which areprejudicial to the maintenance of public order, ordered his detentiondubbing him as a Video Pirate. 4. The learned counsel for the petitioner challenges the impugnedorder of detention only on the ground of delay in preparing the rejectionorder. 5.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.5.2. Article 22(5) of the Constitution of India suggests that theobligation of the government is to offer the detenu an opportunity ofmaking a representation against the order, before it is confirmedaccording to the procedure laid down under the relevant provisions of law,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 .5.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal by the StateGovernment. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India, vide Ram Sukrya Mhatre v. R.D. Tyagi,1992 Supp (3) SCC 65.5.4. Any inordinate and unexplained delay on the part of theGovernment in considering the representation renders the detentionillegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 andRaghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.5. It is a constitutional obligation of the Government to considerthe representation forwarded by the detenu without any delay. Though noperiod is prescribed by Article 22 of the Constitution for the decision to https://hcservices.ecourts.gov.in/hcservices/ be taken on the representation, the words “as soon as may be” in clause(5) of Article 22 convey the message that the representation should beconsidered and disposed of at the earliest. But that does not mean thatthe authority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The court can certainlyconsider whether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of any indifference orlapse in considering the representation, such delay will adversely affectfurther detention of the prisoner. In other words, it is for the authorityconcerned to explain the delay, if any, in disposing of therepresentation. It is not enough to say that the delay was very short.Even longer delay can as well be explained. So the test is not theduration or range of delay, but how it is explained by the authorityconcerned. Even the reason that the Minister was on tour and hence therewas a delay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizen guaranteedunder Article 21 of the Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitude incases involving the vitally important fundamental right of a citizen, videRajammal v. State of T.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objecting to the order ofdetention dated 4.6.2007, a representation was made on behalf of thedetenu on 23.6.2007, which was received by the Government on 25.6.2007.Remarks were called for from the detaining authority on 26.6.2007, whichwas received by the detaining authority on 27.6.2007. The detainingauthority, in turn, called for parawar remarks from the sponsoringauthority on 28.6.2007 and on receipt of the same on 29.6.2007, thedetaining authority sent report to the Government on 2.7.2007 and the samewas received on 4.7.2007. Thereafter, the file was submitted on 5.7.2007and the same was considered by the Under Secretary and AdditionalSecretary on 6.7.2007. The file was considered by the Minister on9.7.2007. However, the rejection letter was prepared on 16.7.2007, aftera delay of seven days, which is not properly explained. Even taking noteof the intervening holidays, viz., 14.7.2007 and 15.7.2007 (being Saturdayand Sunday), the delay of five days in preparing the order of rejection,is admittedly unexplained and inexcusable. Thereafter, the order ofrejection was sent on 17.7.2007 and served on the detenu on 18.7.2007.7. At this juncture, a reference to the decision of the Apex Court inKundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3 SCC194 is apposite:"In spite of law laid down above by this Court repeatedly over thepast three decades, the Executive, namely, the State Government andits officers continue to behave in their old, lethargic fashion andlike all other files rusting in the Secretariat for various reasonsincluding red-tapism, the representation made by a person deprivedof his liberty, continue to be dealt with in the same fashion. The https://hcservices.ecourts.gov.in/hcservices/ Government and its officers will not give up their habit ofmaintaining a consistent attitude of lethargy. So also, this Courtwill not hesitate in quashing the order of detention to restore the‘liberty and freedom’ to the person whose detention is allowed tobecome bad by the Government itself on account of hisrepresentation not being disposed of at the earliest.” 8. That apart, it is a settled law that there should not be supineindifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal of representationwould be a breach of the constitutional imperative and it would render thecontinued detention impermissible and illegal, vide K.M. Abdulla Kunhi v.Union of India, (1991) 1 SCC 476.9. In the instant case, there is delay of five days in preparing theorder of rejection, as referred to above, and the same, in our consideredopinion, vitiates the impugned order of detention. We are, therefore,inclined to allow this petition. In the result, the order of detention dated 4.6.2007 is set aside.The detenu is directed to be set at liberty forthwith unless his presenceis required in connection with any other case.ATR Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government Prohibition and Excise Department Government of Tamilnadu Fort St. George, Chennai-9.2. The Commissioner of Police Chennai Police, Chennai 600 008.3. The Superintendent Central Prison,Chennai.4. The Public Prosecutor High Court, Madras.5. THE JOINT SECRETARY TO GOVT PUBLIC LAW & ORDER DEPT, HIGH COURT, MADRAS.+ One cc to mr. R. Balakrishnan, Advoate sR 65514NG (co)sg 13/12/07H.C.P.No.1046 of 200730.10.2007.