CORAMTHE HONOURABLE MR v. The State of Tamil Nadu by its Secretary Home

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 4.12.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1295 of 2007T.Satyanarayana Murthy.. PetitionerVs.1. The State of Tamil Nadu by its Secretary Home, Prohibition & Excise Department Secretariat, Fort St.George, Chennai 9.2. The Commissioner of Police Office of the Commissioner of Police Egmore, Chennai 600 008... RespondentsPetition filed under Article 226 of the Constitution of India toissue Habeas Corpus as stated therein.For Petitioner : Mr.M.R.RadhakrishnanFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Made by P.D.DINAKARAN,J.)The petitioner is the father-in-law of one Vijaya Bhaskar, who hasbeen clamped an order of detention second respondent herein, as the saidauthority arrived at the subjective satisfaction that the said detenu is aSlum Grabber and he has to be detained under the provisions of the TamilNadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).2.1. The order of detention dated 25.7.2007 came to be passed by thesecond respondent on the basis of the ground case in Crime No.481 of 2007on the file of R1, Mambalam Police Station for the offences punishableunder Sections 120(b), 343, 365, 380, 386, 452, 468, 308 and 506(2) IPCgiven by one Vidhya. On 1.6.2007, at about 5.30 pm, the detenu, alongwith his associate, went to the house of Dr.Chandrika Iyer and kidnapped https://hcservices.ecourts.gov.in/hcservices/ her by making her unconscious and kept her in his custody. One Vidhya,daughter of Dr.Chandrika Iyer's sister found her aunt missing, gave acomplaint before the Sub Inspector of Police, R1, Mambalam Police Station.In the meanwhile, the detenu took the death certificates of Dr.ChandrikaIyer's father and mother and obtained legal heir certificate as if hisaunt Pappayammal @ Miss Iyer is Dr.Chandrika Iyer. Thereafter, he appliedfor change of property in the name of his aunt. Hence, the surveyofficials went to measure the land, where they were informed by theneighbours about the missing of Dr.Chandrika Iyer. The survey officialsinformed R1 Mambalam Police Station about the issuance of legal heircertificate and the application for issue of patta in the name ofPappayammal. On 6.6.2007 at 6.30 pm, coming to know about the action ofthe police, left Dr.Chandrika Iyer at Jagadeeswaran Street and threatenedher not to inform anything to Police. Thereafter, Dr.Chandrika Iyer, alongwith Vidhya, went to R1 Mambalam Police Station and gave a statement. Onthe same day, at about 10 pm, the detenu was arrested.2.2. The detaining authority, having satisfied that the detenu is aSlum Grabber, passed the impugned order of detention with a view toprevent him from acting in any manner prejudicial to the maintenance ofpublic order.3. Challenging the said detention, the detenu has come forward withthe present Habeas Corpus Petition seeking a writ of habeas corpus to callfor the records relating to the detention order made in D.O.No.344 of2007, dated 25.7.2007 passed by the second respondent herein, to quash thesame and to direct the respondent to produce the detenu, now detained inCentral Prison, Puzhal, Chennai and to set him at liberty.4. Heard the learned counsel for the petitioner and Mr.N.R.Elango,learned Additional Public Prosecutor for the respondents.5. The only contention of the learned counsel for the petitioner isthat there is a considerable delay in considering the representation andthe same renders the detention illegal.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. https://hcservices.ecourts.gov.in/hcservices/

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 25.7.2007. A representation was made to the Government on2.8.2007 and the same was received by it on 3.8.2007. Remarks were calledfor from the detaining authority on 6.8.2007, which was received by thedetaining authority on 6.8.2007. Parawar remarks was called for from thesponsoring authority on 7.8.2007 and the same was received on 13.8.2007,after a delay of four days, excluding two public holidays. The report wassent to the Government on 14.8.2007 and the same was received by it on14.8.2007. The file was considered by the Under Secretary and theAdditional Secretary on 17.8.2007 and the Hon'ble Minister on 20.8.2007.The rejection order was prepared on 20.8.2007 and served on the detenu on22.8.2007. The delay in considering the representation, as indicatedabove, was highlighted by the learned counsel for the petitioner. There isno convincing reply on behalf of the State for the said delay. We findsome force as well as substance in this contention and there is noexplanation for this delay. 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 Court https://hcservices.ecourts.gov.in/hcservices/ will 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 .10. The delay which stands unexplained is fatal to the detentionorder attracting Article 22 of the Constitution of India and therefore,the petition must succeed and the same is ordered as prayed for.The impugned order of detention order is set aside. The detenu isdirected to be set at liberty forthwith unless his custody is required inconnection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkplTo1. The Secretary to Government Home, Prohibition and Excise Department Fort St.George, Chennai – 9.2. The Commissioner of Police Office of the Commissioner of Police Egmore, Chennai 600 008.3. The Superintendent of Central Prison Central Prison, Puzhal, Chennai-66.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law and Order) Fort St.George, Chennai -9.1 cc To Mr.M.R.Radhakrishnan, Advocate, SR.71374.H.C.P.No.1295 of 2007. RA(CO)RVL 24.12.2007