Mallika v. The District Collector and District Magistrate, Villupuram District, Villupuram.2. The Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.11.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1070 of 2007Mallika.. PetitionerVs1. The District Collector and District Magistrate, Villupuram District, Villupuram.2. The Secretary to Government., Home, Prohibition and Excise Dept., Fort St. George, Chennai... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.A.ThamizharasanFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, wife of the detenu by name K.Singaravel, who wasincarcerated at Central Prison, Cuddalore, by an order dated 30.5.2007 ofthe first respondent under the provisions of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as aBootlegger, seeks a writ of Habeas Corpus to call for the records inconnection with the order of detention dated 30.5.2007 passed inC2/23170/2007, to set aside the same and to direct the respondents toproduce the detenu before this Court and set him at liberty.2. On 16.5.2007, while conducting prohibition raid by the policeattached to Prohibition Enforcement Wing, Kallakurichi, incharge ofTindivanam, the detenu was found selling illicit arrack containingatropine of 3.47 mg. W/V as per chemical analysis report. A case was https://hcservices.ecourts.gov.in/hcservices/ registered in Crime No.648/2007 on the file of Tindivanam ProhibitionEnforcement Wing for offences punishable under Section 4(1-A), 4(1)(aaa)and 4(1)(i) of the Tamil Nadu Prohibition Act. The detenu was arrestedand produced before the Judicial Magistrate, Gingee, for judicial remand.3. The first respondent, taking note of the above case as a groundcase and finding that there are five adverse cases of alike nature on thefile of Ananthapuram police station in Crime Nos.91/2005, 215/2005,52/2006, 65/2006 and 4/2007, ordered his detention dubbing him as abootlegger. 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 tobe 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 the https://hcservices.ecourts.gov.in/hcservices/ representation. 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 30.5.2007, a representation was made on behalf of thedetenu on 28.6.2007, which was received by the Government on 2.7.2007.Remarks were called for from the detaining authority on 3.7.2007, who, inturn, called for parawar remarks from the sponsoring authority on 5.7.2007and on receipt of the same by the detaining authority on 6.7.2007, it wassent to Government on 9.7.2007, which was received on 13.7.2007.Thereafter, the file was submitted on 17.7.2007 and on the same day, itwas considered by the Under Secretary and the Additional Secretary. TheMinister concerned dealt with the file on 18.7.2007 and rejected the same.However, the rejection letter was prepared on 25.7.2007, after a delay ofseven days, which is not properly explained. Even taking note of theintervening holidays, viz., 21.7.2007 and 22.7.2007 (being Saturday andSunday), the delay of five days in preparing the order of rejection, isadmittedly unexplained and inexcusable. Thereafter, the order ofrejection was sent on 26.7.2007 and served on the detenu on 27.7.2007.7. 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. TheGovernment 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 the https://hcservices.ecourts.gov.in/hcservices/ representation. 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 on the part ofthe sponsoring authority in sending the parawar remarks to the detainingauthority, as referred to above, and the same, in our considered opinion,vitiates the impugned order of detention. We are, therefore, inclined toallow this petition. In the result, the order of detention is set aside. The detenu isdirected to be set at liberty forthwith unless his presence is required inconnection with any other case.sraSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai 600 009.2. The District Magistrate and District Collector Villupuram District, Villupuram.3. The Superintendent Central Prison, Cuddalore.4. The Joint Secretary to Govt, Public Law & order Department Fort St. George, Chennai-9.5. The Public Prosecutor, High Court, Madras.+ One cc to Mr. A. Thamizharasan, Advocate sR 66194RS (co)sg 15/11/07H.C.P.No.1070 of 200705.11.2007