CORAMTHE HONOURABLE MR v. The Government of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 6.11.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1086 of 2007N.Suresh.. PetitionerVs.1. The Government of Tamilnadu rep. by its Secretary Prohibition and Excise Department Fort St.George, Chennai-9.2. The District Collector and District Magistrate Villupuram Collector Office Villupuram.3. The Superintendent of Central Prison Cuddalore. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue Habeas Corpus as stated therein.For Petitioner : Mr.P.VijendranFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detention asagainst Irudayaraj, son of Govindasamy, friend of the petitioner,as the said authority arrived at the subjective satisfaction thatthe said detenu is a Goonda and he has to be detained underSection 3(1) of the Tamil Nadu Prevention of Dangerous Activitiesof Bootleggers, Drug Offenders, Forest Officers, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 15.7.2007 came to be passedby the second respondent on the basis of the ground case,complaint of which was given by one Lakshmi. According to thecomplainant, on 15.6.2007 at about 6.00 am, when she was cleaningthe front portion of the house, three persons entered her houseand started demanding cash, documents and jewels by showing knifeand criminally intimated her. They tied down her hands and legs,fisted and punched all over her face. The younger son ofcomplainant, who was sleeping in the upstairs, came down andseeing the three intruders armed with weapons, started shoutingfor help. As people started gathering outside the house, the threepersons rushed towards the backside of the house, threatened thepublic and escaped from the scene. They also threw a country bombon the crowd. A case was registered in Kadamangalam PoliceStation in Crime No.180 of 2007 under Sections 397 and 511 of IPCread with Section 3(1) of Explosive Substance Act, 1908. Afterinvestigation, the detenu was arrested. 2.2. Apart from the above, the detaining authority also tooknote of one adverse case pending against the detenu, viz., CrimeNo.232 of 2006 on the file of the Orleanpet Police Station for theoffence punishable under Sections 364-A, 365 read with 34 IPC. 2.3. The detaining authority, having satisfied that thedetenu is indulging in activities which are prejudicial tomaintenance of public order, passed the impugned order.3. Challenging the said detention, the friend of the detenuhas come forward with the present Habeas Corpus Petition seeking awrit of habeas corpus to call for the records relating to thedetention order passed by the second respondent in C2/30555/2007,dated 15.7.2007, to quash the same and consequently to produce thedetenu, now detained at the Central Prison, Cuddalore, before thisCourt and to set him at liberty.4. Heard Mr.P.Vijendran, learned counsel for the petitionerand Mr.N.R.Elango, learned Additional Public Prosecutor for therespondents.5. The only contention advanced by the learned counsel forthe petitioner is that there is considerable delay in consideringthe representation and the same has rendered the detentionillegal.6.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point. https://hcservices.ecourts.gov.in/hcservices/

6.2. 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 .6.3. 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 65.6.4. 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 650.6.5. 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 conveythe 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. https://hcservices.ecourts.gov.in/hcservices/

7. In the instant case, the impugned order of detention cameto be passed on 15.7.2007. A representation was made to theGovernment on 27.7.2007 and the same was received by it 30.7.2007.Remarks were called for from the detaining authority on 31.7.2007.After obtaining the remarks of the Sponsoring Authority, thedetaining authority sent a report to the Government on 5.8.2007and the same was received by the Government on 8.8.2007. TheUnder Secretary, the Additional Secretary dealt with the file on10.8.2007. The Hon'ble Minister for P.W.D. and Law consideredthe file on 13.8.2007. But, the rejection letter was preparedonly on 20.8.2007, viz., after seven days. Even though15.8.2007, 18.8.2007 and 19.8.2007 happen to be public holidays,still a delay of 4 days exists. This delay was highlighted by thelearned counsel for the petitioner. There is no convincing replyon behalf of the State for the said delay. We find some force aswell as substance in this contention. We fail to understand as towhy the matter was delayed for four days (excluding publicholidays). There is absolutely no explanation for this delay. 8. 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 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.” 9. 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 . https://hcservices.ecourts.gov.in/hcservices/ The delay of four days which stands unexplained wouldfatalise the detention attracting Article 22 of the Constitutionof India and therefore, the petition must succeed and the sameis ordered as prayed for. The detention order dated 15.7.2007 isset aside. The detenu is directed to be set at liberty forthwithunless his custody is required in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sasi/sraTo:1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Fort St.George, Chennai – 9.2. The District Collector and District Magistrate Villupuram Collector Office Villupuram.3. The Joint Secretary to GovernmentPublic (Law and order)Fort. St. George,Chennai-9.4. The Public Prosecutor High Court, Madras.5. The SuperintendentCentral Prison,Cuddalore.H.C.P.No.1086 of 2007BS (CO)kk 16/11