Arumugam v. The State of Tamil Nadu

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.1080 of 2007Arumugam.. PetitionerVs1. The State of Tamil Nadu, rep. by its Secretary to Govt., Prohibition and Excise Dept., Fort St. George, Chennai.2. The Commissioner of Police, Egmore, Chennai... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.R.ThanjanFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, who was incarcerated at Central Prison,Puzhal, Chennai, by an order dated 19.5.2007 of the secondrespondent under the provisions of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of1982) branding him as a Goonda, seeks a writ of Habeas Corpus tocall for the records in connection with the order of detentiondated 19.5.2007 passed in 212/BDFGISSV/2007, to set aside the sameand to direct the respondents to produce him before this Court andset him at liberty.2. On the basis of special report lodged by Kumar, SubInspector of Police, Law and Order, attached to D1 TriplicanePolice Station, that on 25.4.2007 at about 9.45 hours, the detenu,who is an absconding accused in Crime No.900 of 2007, quarrelledin front of a TASMAC shop and when the police party neared him,threatened them at the point of knife and also attempted to attackwith the knife and thereafter, picked up soda bottles and hurled https://hcservices.ecourts.gov.in/hcservices/ the same against the police, which scattered all over the roadside, creating terror in the spot and also making the public torun on all sides seeking shelter resulting in traffic dislocation,the detenu was arrested and a case was registered in CrimeNo.911/2007 on the file of D1 Triplicane Police Station, foroffences punishable under Sections 353, 336, 427, 307 and 506(2)IPC.3. The first respondent, taking note of the above ground caseand finding that there are four adverse cases on the file of samepolice station in Crime Nos.2694/2002 for the offence underSection 379 I.P.C., 914/2002 for offences under Sections 380 and511 I.P.C., 1823/2006 for the offence under Section 399 I.P.C. and900/2007 for offences punishable under Sections 384 and 506(2)I.P.C., having satisfied that there is compelling necessity todetain the detenu, ordered his detention dubbing him as a Goonda.4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay inpreparing the rejection order.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, beforeit is 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 bythe State Government. Expedition is the rule and delay defeatsmandate of Article 22(5) of the Constitution of India, vide RamSukrya 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 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 authorityconcerned. Even the reason that the Minister was on tour andhence there was a delay of five days in disposing of therepresentation was rejected by the Apex Court holding that whenthe liberty of a citizen guaranteed under Article 21 of theConstitution of India is involved, the absence of the Minister athead quarters is not sufficient to justify the delay, since thefile could be reached the Minister with utmost promptitude incases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objecting to theorder of detention dated 19.5.2007, a representation was made onbehalf of the detenu on 22.6.2007, which was received by theGovernment on 25.6.2007. Remarks were called for from thedetaining authority on 26.6.2007, who, in turn, called for parawarremarks from the sponsoring authority on 28.6.2007 and on receiptof the same on 29.6.2007, the detaining authority sent it to theGovernment on 30.6.2007, which was received on 2.7.2007.Thereafter, the file was submitted on 3.7.2007 and it wasconsidered by the Under Secretary and the Additional Secretary on4.7.2007. The Minister concerned dealt with the file on 5.7.2007and rejected the same. However, the rejection letter was preparedon 16.7.2007, after a delay of eleven days, which is not properlyexplained. Even taking note of the intervening holidays, viz.,7.7.2007, 8.7.2007, 14.7.2007 and 15.7.2007 (being Saturdays andSundays), the delay of seven days in preparing the order ofrejection, is admittedly unexplained and inexcusable.Thereafter, the order of rejection was sent on 17.7.2007 andserved on the detenu on 18.7.2007.7. 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 in https://hcservices.ecourts.gov.in/hcservices/ their old, lethargic fashion and like all other filesrusting 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 theirhabit of maintaining a consistent attitude of lethargy. Soalso, this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to theperson whose detention is allowed to become bad by theGovernment itself on account of his representation notbeing disposed of 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 seven days inpreparing the rejection order, as referred to above, and the same,in our considered opinion, vitiates the impugned order ofdetention. We are, therefore, inclined to allow this petition. In the result, the order of detention is set aside. Thedetenu is directed to be set at liberty forthwith unless hispresence is required in connection with any other case.SraSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009.2. The Commissioner of Police, Egmore, Chennai. https://hcservices.ecourts.gov.in/hcservices/

3. The Superintendent Central Prison, Puzhal, Chennai.4. The Joint Secretary to the Government of Tamil Nadu,Public (Law and Order) Department,Fort St George, Chennai 9.5. The Public Prosecutor, High Court, Madras.•1 cc to Mr. R. Thanjan, Advocate SR no. 66309MA(CO)'SR/5.12.2007H.C.P.No.1080 of 2007