S.Ramesh v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1206 of 2007S.Ramesh.. PetitionerVs1. The State of Tamil Nadu, rep. by its Secretary to Govt., Prohibition and Excise (XIV) Dept., Fort St. George, Chennai.2. The District Magistrate and District Collector, Vellore District... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.V.RaghavachariFor 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 Kasthuri, who wasdetained at Central Prison, Vellore, by an order dated 16.7.2007 ofthe second respondent under the provisions of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)branding her as a Bootlegger, seeks a writ of Habeas Corpus to callfor the records in connection with the order of detention passed inC3.D.O.No.54/2007, to set aside the same and to direct therespondents to produce her before this Court and set her at liberty.2.Facts which led to the passing of the detention order is asfollows :- "On 23.06.2007 at 09.00 hours, while conducting prohibition raidat Kavakkarai Theru in Perumuchi Village, the Inspector of Police,Arakonam Town Police Station found the detenue selling illicitarrack. On seeking the police party, persons who had come there toconsume the illicit arrack escaped, and the detenue was arrested andon the basis of confession statement given by her, a case inCr.No.276/2007 was registered for offences under Section 4(1)(i) 4(1)(aaa) 4(1-A) II of the Tamil Nadu Prohibition Act r/w Section 328IPC. The sample of illicit arrack seized was sent for Chemical https://hcservices.ecourts.gov.in/hcservices/ Analysis and it was found admixed with 6.6 mgs of atropine".3.The second respondent, taking note of the above ground case andfinding that the detenue came to the adverse notice of theauthorities in three cases of alike nature on the file of same policestation, viz., in Crime Nos.140/2006, 1114/2006 and Cr.No.130/2007,having satisfied that there is compelling necessity to detain thedetenue in order to prevent her from indulging in such activities,which are prejudicial to the maintenance of public order and publichealth, ordered her detention 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 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 oflaw, 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 theState Government. Expedition is the rule and delay defeats mandate ofArticle 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 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, thewords “as soon as may be” in clause (5) of Article 22 convey themessage that the representation should be considered and disposed ofat the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in thedisposal of the representation. The court can certainly considerwhether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of anyindifference or lapse in considering the representation, such delay https://hcservices.ecourts.gov.in/hcservices/ will adversely affect further detention of the prisoner. In otherwords, it is for the authority concerned to explain the delay, ifany, in disposing of the representation. It is not enough to say thatthe delay was very short. Even longer delay can as well be explained.So the test is not the duration or range of delay, but how it isexplained by the authority concerned. Even the reason that theMinister was on tour and hence there was a delay of five days indisposing of the representation was rejected by the Apex Courtholding that when the liberty of a citizen guaranteed under Article21 of the Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitudein cases 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 the orderof detention, a representation dated nil was made on behalf of thedetenue, which was received by the Government on 1.8.2007. Remarkswere called for from the detaining authority on 2.8.2007, who, inturn, called for parawar remarks from the sponsoring authority on7.8.2007. The Sponsoring Authority has submitted his remarks only on13.08.2007, after a delay of six days. Even excluding theintervening public holidays, viz. 11.8.2007 and 12.8.2007, the delayof four days is admittedly unexplained and hence, inexcusable.Thereafter, it was sent to the Government on 14.08.2007. The same wasreceived by Government on 20.8.2007. Thereafter, the file wassubmitted on 24.8.2007 and it was considered by the Under Secretaryon 28.8.2007 and the Additional Secretary on 29.8.2007. The Ministerconcerned dealt with the file on 29.8.2007 and rejected the same. Therejection letter was prepared and sent on 30.8.2007 and the same wasserved to the detenu on 01.09.2007.7.At this juncture, a reference to the decision of the Apex Courtin Kundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad,(1996) 3 SCC 194 is apposite:"In spite of law laid down above by this Court repeatedly overthe past three decades, the Executive, namely, the StateGovernment and its officers continue to behave in their old,lethargic fashion and like all other files rusting in theSecretariat for various reasons including red-tapism, therepresentation made by a person deprived of his liberty,continue to be dealt with in the same fashion. The Governmentand its officers will not give up their habit of maintaining aconsistent attitude of lethargy. So also, this Court will nothesitate in quashing the order of detention to restore the‘liberty and freedom’ to the person whose detention is allowedto become bad by the Government itself on account of hisrepresentation not being disposed of at the earliest.” https://hcservices.ecourts.gov.in/hcservices/

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 ofrepresentation would be a breach of the constitutional imperative andit would render the continued detention impermissible and illegal,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476.9.In the instant case, there is delay of four days on the part ofthe sponsoring authority in sending the parawar remarks, as referredto above, and the same, in our considered opinion, vitiates theimpugned order of detention. We are, therefore, inclined to allowthis petition. In the result, the order of detention is set aside. The detenueis directed to be set at liberty forthwith unless her presence isrequired in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sraTo:1. The Secretary to Government of Tamil Nadu, Prohibition and Excise [XIV] Department, Fort St. George, Chennai 600 009.2. The District Magistrate and District Collector,Vellore District.3. The Superintendent, Special Prison for Women,Central Prison, Vellore. https://hcservices.ecourts.gov.in/hcservices/

4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government,Public[Law and Order] Department,Fort St. George, Chennai 9.+ 1 CC To Mr. V.Raghavachari, Advocate SR NO.71411H.C.P.No.1206 of 2007pur[co]gp/10.12.