Syed Noorullah v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.11.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1157 of 2007Syed Noorullah.. PetitionerVs1. The State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise XII Department St. George Fort, Chennai-600 009.2. District Magistrate and District Collector Thiruvannamalai Thiruvannamalai District... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mrs.N.Dinslin Shelta RaniFor Respondents :Mr.Babu Muthu MeeranAddl. Public ProsecutorO R D E R(Made by P.D.DINAKARAN,J.)The petitioner, who is the husband of detenue, Sayathi, who wasincarcerated by order dated 25.7.2007 of the second respondent under theprovisions of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982(Tamil Nadu Act 14 of 1982) branding her as a Bootlegger, has preferredthis writ petition for issue of a Writ of Habeas Corpus to call for therecords in connection with the order of detention passed by the secondrespondent in D.O.No.33/2007-C2 against the petitioner's wife, Sayathi,now confined at Special Prison for Women, Vellore to set aside the sameand to direct the respondents to produce the above said detenue beforethis Court and set her at liberty. https://hcservices.ecourts.gov.in/hcservices/

2. On the basis of the complaint given by one Musthafa on 3.7.2007at 10.30 hours before the Sub Inspector of Police, Vandavasi South PoliceStation, that on 3.7.2007 at about 8.00 hours, he purchased two tumblersof I.D. arrack from the detenue and after consuming the same, he feltburning sensation in his eyes, stomach and throat, giddiness, vomitting,blurring vision and fell down, a case was registered in Crime No.89 of2007 under Sections 4(1-A), 4(1)(aaa) read with 4(1)(i) of the Tamil NaduProhibition Act. The chemical analysis report revealed that illicitarrack contained atropine of 6.9 mg per 100ml.3. The second respondent, taking note of this case as a ground caseand finding that there are eight adverse cases pending against the detenuein Crime Nos.56/2003, 206/2005, 127/2006, 445/2006, 449/2006, 705/2006,720/2006 and 71/2007 on the file of Vandavasi South Police Station for theoffences punishable under Sections 4(1)(i), 4(1)(a), 4(1)(aa), 4(1)(aaa),4(1)(aaa) read with 4(1-A)(ii)of the Tamil Nadu Prohibition Act and havingsatisfied that there is a compelling necessity to detain the detenu inorder to prevent him from indulging in the activities which areprejudicial to the maintenance of public order and public health, orderedher detention dubbing her as a Bootlegger. 4. The learned counsel for the petitioner challenges the impugnedorder of detention mainly on the ground of delay in preparing therejection order, while considering the representation dated 8.8.2007.Hence, we do not propose to go into the other aspects of the case.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 no https://hcservices.ecourts.gov.in/hcservices/ period 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 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 the case on hand, admittedly, objecting to the orderof detention dated 25.7.2007, a representation was made on behalf of thedetenue on 8.8.2007, which was received by the Government on 13.8.2007.Remarks were called for from the detaining authority on 14.8.2007, whichwas received by the detaining authority on 16.8.2007. The detainingauthority, in turn, called for parawar remarks from the sponsoringauthority on 16.8.2007 and on receipt of the same on 20.8.2007, thedetaining authority sent it to the Government on the same day, viz.20.8.2007, which was received on 21.8.2007. Thereafter, the file wassubmitted on 22.8.2007 and the same was considered by the Under Secretaryand Additional Secretary on 23.8.2007 itself. The file was considered bythe Minister on 24.8.2007. However, the rejection letter was prepared on29.8.2007, after a delay of five days, which is not properly explained.Even taking note of the intervening holidays, viz., 25.8.2007 and26.8.2007 (being Saturday and Sunday), the delay of three days inpreparing the rejection order is admittedly unexplained and inexcusable.Thereafter, the rejection order was sent on 30.9.2007.7. 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 and https://hcservices.ecourts.gov.in/hcservices/ like 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 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 a delay of three days in preparingthe rejection order, as referred to above, and the same, in ourconsidered opinion, vitiates the impugned order of detention. We are,therefore, inclined to allow this petition. In the result, the order of detention is set aside. The detenue isdirected to be set at liberty forthwith unless her presence is required inconnection with any other case.kplSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government Prohibition and Excise XII Department St. George Fort, Chennai-600 009.2. The District Magistrate and District Collector Thiruvannamalai Thiruvannamalai District. https://hcservices.ecourts.gov.in/hcservices/

3. The Public Prosecutor High Court, Madras.4. THE JOINT SECRETARY TO GOVT OF TAMILNADU, PUBLIC (LAW AND ORDER) DEPARTMENT, FORT ST GEORGE, CHENNAI.5. THE SUPERINTENDENT SPECIAL PRISON FOR WOMEN, VELLORE.JRG (co)sg 22/11/07HCP No.1157 of 2007. 7.11.2007.