CORAMTHE HONOURABLE MR v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.11.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1269 of 2007Suresh Raja @ Suresh Sing @ Suresh .. PetitionerVs.1. The State rep. by its Secretary to Government Prohibition & Excise Department Secretariat, Chennai-9.2. The District Collector and District Magistrate Erode District Erode. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue Habeas Corpus directing the respondents to producethe detenue Viz Suresh Raja @ Suresh Sing @ Suresh son of Logesh @Loganathan who is now detained in Central Prison, Coimbatore inpursuance of the order of detention passed by the 2nd respondenton 8.4.2007 in Memo No.Cr.M.P.No.4/2007/C1 before the Court callfor records set aside the order and set at liberty.For Petitioner : Mrs.A.VijayalakshmiFor 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 the detenu/petitioner, as the said authority arrived atthe subjective satisfaction that the said detenu is a Goonda andhe has to be detained under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Officers, Goondas, Immoral Traffic Offenders, Sand https://hcservices.ecourts.gov.in/hcservices/ Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil NaduAct 14 of 1982).2.1. The order of detention dated 8.4.2007 came to be passedby the second respondent on the basis of the ground case in CrimeNo.168 of 2007 on the file of Kavindapadi Police Station for theoffences punishable under Sections 392 read with 397 IPC and 25(1)(b)(a) of Indian Arms Act, complaint of which was given by oneSivaprakash. On 26.2.2007, the complainant along with his wifewere on their way to Kuttaigoundenpudur from Erode at 7.30 pm inmotorcycle. When they were near Angalamman Koil on the easternside of Ayyampalayam pirivu, Kavandapadi, a Tata Sumo Car camespeedily and halted, obstructing their way. Three persons got downfrom the car, two of them were armed and threatened to part withthe jewels worn by the wife of the complainant. One accusedsnatched the hand bag of the wife of the complainant. Thecomplainant and his wife raised alarm and on hearing the same, thenearby public came. The accused seeing this sped away towardsGobichettipalayam. The Inspector of Police, Kavindapadi PoliceStation took up the case for investigation and the detenu wasarrested. 2.2. Apart from the above, the detaining authority also tooknote of three adverse cases pending against the detenu, viz., CrimeNo.18 of 2007 on the file of Kavindapadi Police Station for theoffence punishable under Section 379 IPC; Crime No.34 of 2007 onthe file of Thingalur Police Station for the offence punishableunder Section 379 IPC; and Crime No.119 of 2007 on the file ofGobichettipalayam Police Station for the offence punishable underSection 379 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 detenu has comeforward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to direct the respondents to produce the recordspertaining to the detention of the detenu, by order of detentionpassed by the second respondent in Cr.M.P.No.4/2007/ C1, dated8.4.2007, to set aside the same and to direct the second respondentto cause production of body and person of the detenu, who is nowconfined in Central Prison at Coimbatore before this Court and toset him at liberty.4. Heard the learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor for therespondents. https://hcservices.ecourts.gov.in/hcservices/

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.6.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.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, before itis 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 by theState Government. Expedition is the rule and delay defeats mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre 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 authority concerned.Even the reason that the Minister was on tour and hence there was adelay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizenguaranteed under Article 21 of the Constitution of India is https://hcservices.ecourts.gov.in/hcservices/ involved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reachedthe Minister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.7. In the instant case, the impugned order of detention cameto be passed on 8.4.2007. A representation was made to theGovernment on 20.4.2007 and the same was received by it 24.4.2007.Remarks were called for from the detaining authority on 26.4.2007and the said representation was received on 26.4.2007 itself by thedetaining authority, and in turn, parawar remarks were called forfrom the sponsoring authority on the same date. However, remarksof the sponsoring authority were received by the detainingauthority only on 8.5.2007, viz., after a delay of 7 days,excluding 5 days public holidays. The delay in considering therepresentation, as indicated above, was highlighted by the learnedcounsel for the petitioner. There is no convincing reply on behalfof the State for the said delay. We find some force as well assubstance in this contention. There is absolutely no explanationfor 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 their habitof maintaining a consistent attitude of lethargy. So also,this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by the Governmentitself on account of his representation not being disposedof 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 which stands unexplained would fatalise thedetention attracting Article 22 of the Constitution of India andtherefore, the petition must succeed and the same is orderedas prayed for. The detention order dated 8.4.2007 is setaside. 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.sasiTo:1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Fort St.George, Chennai – 9.2. The District Magistrate and District Collector Erode District Erode.3. The Superintendent,Central Prison,Coimbatore4. The Joint Secretary(Law and order) DepartmentFort St. George, Chennai-9.5. The Public Prosecutor High Court, Madras.H.C.P.No.1269 of 2007KSJ (CO)kk 4/12