Kalaivani v. The Secretary to Government of Tamil Nadu Prohibition & Excise Department & Ors.

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.1296 of 2007Kalaivani.. PetitionerVs.1. The Secretary to Government of Tamil Nadu Prohibition & Excise Department Fort St.George, Chennai 600 009.2. District Collector and District Magistrate Tiruvallur District, Tiruvallur... Respondents-----Petition filed under Article 226 of the Constitution of India toissue Habeas Corpus as stated therein.-----For Petitioner : Mr.N.SudharsanFor Respondents : Mr.N.R.Elango Addl. Public Prosecutor-----O R D E R(Made by P.D.DINAKARAN,J.)The petitioner is the daughter of one Bogi Mani @ Subramani, whohas been clamped an order of detention second respondent herein, asthe said authority arrived at the subjective satisfaction that the saiddetenu is a Goonda and he has to be detained under the provisions of theTamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Officers, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14of 1982).2.1. The order of detention dated 25.7.2007 came to be passed bythe second respondent on the basis of the ground case in Crime No.44 of2007 on the file of Thiruvalangadu Police Station for the offencespunishable under Sections 147, 148, 341, 324, 323, 307 and 302 IPC, https://hcservices.ecourts.gov.in/hcservices/ based on the statement given by Karthikeyan. On 5.6.2007, thecomplainant went to the house of one Mariadoss to attend a birthdayparty. At that time, the detenu and his associates, armed withknife, iron rods and wooden rods, surrounded Mariadoss and hacked himto death, due to previous enmity. They also attacked the complainanton his forehead and legs. They also attacked the brothers of thecomplainant and Asaithambi, Soundararajan, Saminathan and Sharmila.Based on the complaint, the case was taken up for investigation and thedetenu was arrested.2.2. The detaining authority also took note of two adverse casespending against the detenu in Crime Nos.262/2003 and 17/2006 on thefile of Thiruvalangadu Police Station for the offence under Sections160, IPC and under Sections 147, 148, 294(b), 307 read with 109,149,IPC.2.3. The detaining authority, having satisfied that the detenu isindulging in activities which are prejudicial to maintenance of publicorder, passed the impugned order.3. Challenging the said detention, the detenu has come forwardwith the present Habeas Corpus Petition seeking a writ of habeas corpusto call for the records relating to the detention order made inB.D.F.G.I.S.S.V.No.14 of 2007, dated 25.7.2007 passed by the secondrespondent herein, to quash the same and to direct the respondent toproduce the detenu, now detained in Central Prison, Puzhal, Chennai andto 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 advanced by the learned counsel for thepetitioner is that there is a 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 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 .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 mandate of https://hcservices.ecourts.gov.in/hcservices/ 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 toconsider the representation forwarded by the detenu without any delay.Though no period is prescribed by Article 22 of the Constitution forthe decision to be taken on the representation, the words “as soon asmay be” in clause (5) of Article 22 convey the message that therepresentation should be considered and disposed of at the earliest.But that does not mean that the authority is pre-empted from explainingany delay which would have occasioned in the disposal of therepresentation. The court can certainly consider whether the delay wasoccasioned due to permissible reasons or unavoidable causes. If delaywas caused on account of any indifference or lapse in considering therepresentation, such delay will adversely affect further detention ofthe prisoner. In other words, it is for the authority concerned toexplain the delay, if any, in disposing of the representation. It isnot enough to say that the delay was very short. Even longer delay canas well be explained. So the test is not the duration or range ofdelay, but how it is explained by the authority concerned. Even thereason that the Minister was on tour and hence there was a delay offive days in disposing of the representation was rejected by the ApexCourt holding that when the liberty of a citizen guaranteed underArticle 21 of the Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify the delay, sincethe file could be reached the Minister with utmost promptitude in casesinvolving 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 on6.9.2007 and the same was received by it 7.9.2007. Remarks were calledfor from the detaining authority on 8.9.2007, which was received by thedetaining authority on 11.9.2007. Parawar remarks was called for fromthe sponsoring authority on 11.9.2007 itself and the same was receivedon 12.9.2007. However, the report was sent to the Government only on17.9.2007, after a delay of three days, excluding two public holidaysand the same was received by it on 17.9.2007 itself. The file wasconsidered by the Under Secretary and the Additional Secretary on18.9.2007 and the Hon'ble Minister on 19.9.2007. The rejection orderwas prepared on 24.9.2007. The delay in considering the representation,as indicated above, was highlighted by the learned counsel for thepetitioner. There is no convincing reply on behalf of the State for thesaid delay. We find some force as well as substance in this contention. https://hcservices.ecourts.gov.in/hcservices/ There is absolutely no explanation for this delay. 8. 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.” 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 renderthe continued detention impermissible and illegal, vide K.M. AbdullaKunhi 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 andtherefore, the petition must succeed and the same is ordered asprayed for. The impugned order of detention is set aside. Thedetenu is directed to be set at liberty forthwith unless his custody isrequired in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkpl https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department Fort St.George, Chennai – 9.2. District Collector and District Magistrate Tiruvallur District, Tiruvallur.3. The Superintendent of Central Prison Central Prison, Puzhal, Chennai-66.4. The Public Prosecutor High Court, Madras.5.The Joint Secretary to Govt.Public (Law and Order)Fort St. George, Chennai-9.+1cc to Mr.N.Sudharsan, Advocate Sr 71416SR (CO)km/4.1.H.C.P.No.1296 of 2007.