Veera Prakash v. The Secretary to Government., Home, Prohibition and Excise Dept., Fort St. George

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1071 of 2007Veera Prakash.. PetitionerVs1. The Secretary to Government., Home, Prohibition and Excise Dept., Fort St. George, Chennai.2. The District Collector and District Magistrate, Villupuram District, Villupuram... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.K.GandhikumarFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, son of the detenue by name Thangam,W/o.Sakthivel, who was incarcerated at Special Prison for Women,Vellore, by an order dated 6.7.2007 of the second respondentunder the provisions of the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Offenders,Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)branding her as a Bootlegger, seeks a writ of Habeas Corpus tocall for the records in connection with the order of detentiondated 6.7.2007 passed in C2/28739/2007, to set aside the sameand to direct the respondents to produce the detenue before thisCourt and set her at liberty. https://hcservices.ecourts.gov.in/hcservices/

2. On 9.6.2007, while conducting prohibition raid by thepolice attached to Villupuram Prohibition Enforcement Wing, thedetenue was found selling illicit arrack containing atropine of3.18 mg. W/V as per chemical analysis report. A case wasregistered in Crime No.827/2007 on the file of VillupuramProhibition Enforcement Wing for offences punishable under Section4(1)(i), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act.The detenue was arrested and produced before the JudicialMagistrate No.I, Villupuram, for judicial remand.3. The second respondent, taking note of the above case as aground case and finding that there are six adverse cases of alikenature on the file of same police station in Crime Nos.217/2006,548/2006, 873/2006, 1011/2006, 1106/2006 and 646/2007, ordered herdetention dubbing her as a bootlegger. 4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay on the partof the sponsoring authority in sending the parawar remarks to thedetaining authority.5.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.5.2. Article 22(5) of the Constitution of India suggests thatthe obligation of the government is to offer the detenu anopportunity of making a representation against the order, before itis confirmed according to the procedure laid down under therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 .5.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal by theState Government. Expedition is the rule and delay defeats mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre 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 321and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.5. It is a constitutional obligation of the Government toconsider the representation forwarded by the detenu without anydelay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on the representation,the words “as soon as may be” in clause (5) of Article 22 convey https://hcservices.ecourts.gov.in/hcservices/ the message that the representation should be considered anddisposed of at the earliest. But that does not mean that theauthority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The court cancertainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering therepresentation, such delay will adversely affect further detentionof the prisoner. In other words, it is for the authority concernedto explain the delay, if any, in disposing of the representation.It is not enough to say that the delay was very short. Even longerdelay can as well be explained. So the test is not the duration orrange of delay, but how it is explained by the authority concerned.Even the reason that the Minister was on tour and hence there was adelay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizenguaranteed under Article 21 of the Constitution of India isinvolved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reachedthe Minister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objecting to theorder of detention dated 6.7.2007, a representation was made onbehalf of the detenue dated Nil, which was received by theGovernment on 25.7.2007. Remarks were called for from thedetaining authority on 26.7.2007, who, in turn, called for parawarremarks from the sponsoring authority on 3.8.2007. But thesponsoring authority took his own time and sent the parawar remarksonly on 11.8.2007, i.e. after a delay of eight days. Even takingnote of the intervening holidays, viz. 4.8.2007 and 5.8.2007 (beingSaturday and Sunday), there is delay of six days in sending theparawar remarks, which is unexplained and inexcusable. Thereafter,the detaining authority sent the remarks on the same day, i.e. on11.8.2007 and it was received by the Government on 17.8.2007. Thefile was submitted on 20.8.2007 and the Under Secretary and theAdditional Secretary considered the file on 21.8.2007 and on22.8.2007 the Minister concerned considered and rejected the same.The rejection letter was prepared on 24.8.2007, it was sent to thedetenu on 28.8.2007 and served on the detenue on 30.8.2007. 7. At this juncture, a reference to the decision of the ApexCourt in Kundanbhai Dulabhai Sheikh v District Magistrate,Ahmedabad, (1996) 3 SCC 194 is apposite:"In spite of law laid down above by this Court repeatedlyover the past three decades, the Executive, namely, theState Government and its officers continue to behave intheir old, lethargic fashion and like all other files https://hcservices.ecourts.gov.in/hcservices/ rusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprived ofhis liberty, continue to be dealt with in the same fashion.The Government and its officers will not give up their habitof maintaining a consistent attitude of lethargy. So also,this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by the Governmentitself on account of his representation not being disposedof at the earliest.” 8. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in consideringthe representation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperativeand it would render the continued detention impermissible andillegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC476.9. In the instant case, there is delay of six days on the partof the sponsoring authority in sending the parawar remarks to thedetaining authority, as referred to above, and the same, in ourconsidered opinion, vitiates the impugned order of detention. Weare, therefore, inclined to allow this petition. In the result, the order of detention is set aside. Thedetenue is directed to be set at liberty forthwith unless herpresence is required in connection 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. https://hcservices.ecourts.gov.in/hcservices/

2. The District Magistrate and District Collector Villupuram District, Villupuram.3. The Superintendent, Central Special Prison for Women, Vellore.4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St George, Chennai 9.5. The Public Prosecutor, High Court, Madras.H.C.P.No.1071 of 2007RS(CO)SR/20.11.2007