Subramaniam v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1294 of 2007Subramaniam.. PetitionerVs1. State, rep. by its Secretary to Govt., Prohibition and Excise Dept., Secretariate, Chennai.2. The District Collector and District Magistrate, Villupuram District, Villupuram... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.S.Swamidoss ManokaranFor Respondents:Mr.P.Kumaresan Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, cousin brother of the detenu, by name Ramar, whowas detained at Central Prison, Cuddalore, by an order dated29.5.2007 of the second respondent under the provisions of the TamilNadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982) branding him as a Bootlegger, seeks a writ of HabeasCorpus to call for the records in connection with the order ofdetention passed in C2/22762/2007, to set aside the same and todirect the respondents to produce him before this Court and set himat liberty.2.Facts which led to the passing of the detention order is asfollows :- https://hcservices.ecourts.gov.in/hcservices/ "On 13.05.2007 at 11.00 hours, while conducting prohibition raidat Arasampattu Village, the Inspector of Police, Kallakurichi,Incharge of Tirukoilur Prohibition Enforcement Wing found the detenuselling illicit arrack. On seeking the police party, persons who hadcome there to consume the illicit arrack escaped, and the detenu wasarrested and on the basis of confession statement given by him, acase in Cr.No.601/2007 was registered for offences under Section 4(1)(i) 4(1)(aaa) and 4(1-A) II of the Tamil Nadu Prohibition Act. Thesamples of illicit arrack seized were sent for Chemical Analysis andeach sample was found admixed with 3.47 mgs of atropine".3.The second respondent, taking note of the above ground case andfinding that the detenu came to the adverse notice of the authoritiesin five cases of alike nature on the file of same police station,viz., in Crime Nos.185/2006, 414/2006, 727/2006, 36/2007 andCr.No.419/2007, having satisfied that there is compelling necessityto detain the detenu in order to prevent him from indulging in suchactivities, which are prejudicial to the maintenance of public orderand public health, ordered his detention dubbing him 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, while considering the representation made onbehalf of the detenu. Hence, we do not propose to go into otheraspects of the case.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. https://hcservices.ecourts.gov.in/hcservices/

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 delaywill 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 dated 29.5.2007, a representation dated nil was made onbehalf of the detenu, which was received by the Government on12.7.2007. Remarks were called for from the detaining authority on12.7.2007, and on receipt of the same, parawar remarks were calledfrom the sponsoring authority on 18.7.2007. The Sponsoring Authorityhas submitted his remarks only on 26.07.2007, after a delay of eightdays. Even excluding the intervening public holidays, viz. 21.7.2007and 22.7.2007 (being Saturday and Sunday), the delay of six days isadmittedly unexplained and hence, inexcusable. Thereafter, it wassent to the Government on 27.07.2007 and the same was received byGovernment on 1.8.2007. The file was submitted on 2.8.2007 and it was https://hcservices.ecourts.gov.in/hcservices/ considered by the Under Secretary and the Additional Secretary on thesame day. The Minister concerned dealt with the file on 3.8.2007 andrejected the same. The rejection letter was prepared and sent on8.8.2007 and the same was served to the detenu on 11.08.2007.7.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.” 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 six 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 detenuis directed to be set at liberty forthwith unless his presence isrequired in connection with any other case.SraSd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009.2. The District Collector and District Magistrate, Villupuram District, Villupuram.3. The Superintendent Central Prison, Cuddalore.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law and Order) Fort St. George, Chennai.Scd (co)dv/14.12.H.C.P.No.1294 of 2007