CORAMTHE HONOURABLE MR v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.11.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1170 of 2007Pakkirisamy.. PetitionerVs.1. The State of Tamilnadu rep. by its Secretary to Government Home, Prohibition & Excise Department Fort St.George, Chennai-9.2. The District Collector and District Magistrate Nagapattinam District Nagapattinam. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India toissue Habeas Corpus as stated therein.For Petitioner : Mr.O.S.Thilak PasumbadiyarFor 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 as againstthe detenu – Vaithi alias Vaithiyalingam, son of Somu, brother of thepetitioner, as the said authority arrived at the subjective satisfactionthat the said detenu is a Bootlegger and he has to be detained underSection 3(1) of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug Offenders, Forest Officers, Goondas, Immoral TrafficOffenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982(Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 28.7.2007 came to be passed by thesecond respondent on the basis of the ground case in Crime No.1512 of 2007on the file of Nagapattinam Prohibition Enforcement Wing for the offencespunishable under Sections 4(1)(aaa), 4(1)(i) read with 4(1-A) of the TamilNadu Prohibition Act. On 16.7.2007 at 1400 Hours, the Inspector ofPolice, Prohibition Enforcement Wing, Nagapattinam along with his policeparty proceeded on a prohibition raid to Sithaimoor Village ofThirukkuvalai Police Station. During the course of the raid, the policeparty found the detenu selling illicit arrack from a 120 litres capacitylorry tube to unknown person, who escaped seeing the police party. Thedetenu also tried to run away from the scene but was apprehended by thepolice party. The contraband was seized. The samples were sent forchemical analysis. The Assistant Director, Regional Forensic ScienceLaboratory, Thanjavur, in his report, opined that the samples contained5.7%mg of Atropine per 100 ml, and the Assistant Medical Officer,Government District Head Quarters Hospital, Nagapattinam opined that theconsumption of such arrack mixed with atropine would endanger life, evenif intensive treatment is given to the patient.2.2. Apart from the above, the detaining authority also took note offive adverse cases pending against the detenu, viz., Crime Nos.209, 873,and 1291 of 2007 on the file of the Nagapattinam Prohibition EnforcementWing for the offences punishable under Sections 4(1)(aaa), 4(1)(aa) readwith 4(1-A), and 4(1)(aa) of the Tamil Nadu Prohibition Act; and CrimeNos.48 and 89 of 2007 on the file of the Thirukkuvalai Police Stationfor the offences punishable under Sections 4(1)(aaa) read with 4(1-A) and4(1)(aaa) of the Tamil Nadu Prohibition Act.2.3. The detaining authority, having satisfied that the detenu isindulging in activities which are prejudicial to maintenance of publicorder and public health, passed the impugned order.3. Challenging the said detention, the brother of the detenu has comeforward with the present Habeas Corpus Petition seeking a writ of habeascorpus to call for the records relating to the order made in C.O.C.No.38of 2007,d ated 28.7.2007 in detaining the detenu under 2-b of Tamil NaduAct 14 of 1982, as a bootlegger, to quash the same and to direct therespondents to produce the detenu, who is detained at Central Prison,Trichy, before this Court and to set him at liberty.4. Heard Mr.O.S.Thilak Pasumbadiyar, learned counsel for thepetitioner and Mr.N.R.Elango, learned Additional Public Prosecutor for therespondents.5. The only contention advanced by the learned counsel for thepetitioner is that there is considerable delay in considering therepresentation and the same has rendered the detention illegal. https://hcservices.ecourts.gov.in/hcservices/

6.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.6.2. 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 .6.3. 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 65.6.4. 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 321 andRaghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.6.5. 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 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 417.7. In the instant case, the impugned order of detention came to bepassed on 28.7.2007. A representation was made to the Government on10.8.2007 and the same was received by it 13.8.2007. Remarks were called https://hcservices.ecourts.gov.in/hcservices/ for from the detaining authority on 14.8.2007. The detaining authorityreceived the said representation on 17.8.2007, but remarks of theSponsoring authority were called for only on 14.9.2007, viz., after 19days, excluding 9 public holidays. There is no convincing reply on behalfof the State for the said delay. We find some force as well as substancein this contention. 8. 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.” 9. 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 .The delay on nineteen days which stands unexplained would fatalisethe detention attracting Article 22 of the Constitution of India andtherefore, the petition must succeed and the same is ordered as prayedfor. The detention order dated 28.7.2007 is set aside. The detenu isdirected to be set at liberty forthwith unless his custody is required inconnection with any other case.sasiSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ [sasi]To:1. The Secretary to Government State of Tamilnadu Home, Prohibition and Excise Department Fort St.George, Chennai – 9.2. The District Collector and District Magistrate Nagapattinam District Nagapattinam.3. The Public Prosecutor High Court, Madras.4. The Superintendent, Central Prison, Tiruchirapalli.5. The Joint Secretary to Government, Public (Law & Order) Department, Fort George, Chennai-9.VG(CO)dcp/19.11 H.C.P.No.1170 of 2007