CORAMTHE HONOURABLE MR v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.12.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1311 of 2007R.Thavamani.. PetitionerVs.1. The State of Tamilnadu rep. by its Secretary Prohibition & Excise Department Fort St.George, Chennai-9.2. The District Collector and District Magistrate Nagapattinam District Nagapattinam. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue Habeas Corpus directing the respondents to producethe detenue Mani, before this Honourable Court now confined inCentral Jail, Trichy and call for the records of the Respondentsrelating to the order of detention vide proceeding COC No.47/2007dated 26.8.2007 and set aside the same and set him at liberty.For Petitioner : Mr.PonpandiyanFor 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 – Mani, brother-in-law of the petitioner, asthe said authority arrived at the subjective satisfaction that thesaid detenu is a Bootlegger and he has to be detained underSection 3(1) of the Tamil Nadu Prevention of Dangerous Activitiesof Bootleggers, Drug Offenders, Forest Officers, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 26.8.2007 came to be passedby the second respondent on the basis of the ground case in CrimeNo.435 of 2007 on the file of Velippalayam Police Station for theoffences punishable under Sections 4(1)(aaa), 4(1)(i) read with 4(1-A) of the Tamil Nadu Prohibition Act. On 14.8.2007, theInspector of Police, Nagapattinam Town Police Station and policeparty proceeded on prohibition raid and found the detenu sellingillicit arrack to unknown person. The detenu was arrested on thespot and the contraband was seized. The samples were sent forchemical analysis and report reveals that the sample of arrackcontained 5.4%mg of Atropine per 100 ml, and the same wouldendanger life.2.2. Apart from the above, the detaining authority also tooknote of three adverse cases pending against the detenu, viz., CrimeNo.173 of 2007 on the file of Velipalayam Police Station for theoffences punishable under Sections 4(1)(aaa) of the Tamil NaduProhibition Act; and Crime Nos.879 and 1317 of 2007 on the file ofthe Nagapattinam Prohibition Enforcement Wing for the offencespunishable under Sections 4(1)(aa) and 4(1)(aaa) of the Tamil NaduProhibition Act respectively.2.3. The detaining authority, having satisfied that thedetenu is indulging in activities which are prejudicial tomaintenance of public order and public health, passed the impugnedorder.3. Challenging the said detention, the brother-in-law of thedetenu has come forward with the present Habeas Corpus Petitionseeking a writ of habeas corpus to direct the respondents toproduce the detenu before this Court, now confined in CentralPrison, Trichy and to call for the records of the respondentsrelating to the order of detention vide proceedings COC No.47 of2007, dated 26.8.2007, to set aside the same and to set the detenuat liberty.4. Heard the learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor for therespondents.5. The only contention advanced by the learned counsel for thepetitioner is that the representation dated 30.8.2007 sent by thedetenu has not been considered till date and the same has renderedthe detention illegal. https://hcservices.ecourts.gov.in/hcservices/

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 isinvolved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reached https://hcservices.ecourts.gov.in/hcservices/ the 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 26.8.2007. A representation was made to theGovernment on 30.8.2007 and the same was received by it on7.9.2007. Remarks were called for from the detaining authority on8.9.2007. But, till date, the remarks of the detaining authorityhave not been received by the Government for considering therepresentation and disposing of the same. There is a lapse ofnearly three months. There is no convincing explanation on behalfof the State for the said delay. We find some force as well assubstance in this contention. 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 .The delay in considering the representation which standsunexplained is fatal to the detention order attracting Article 22of the Constitution of India and therefore, the petition mustsucceed and the same is ordered as prayed for. The detention https://hcservices.ecourts.gov.in/hcservices/ order dated 26.8.2007 is set aside. The detenu is directed tobe set at liberty forthwith unless his custody is required inconnection 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 Collector and District Magistrate Nagapattinam District Nagapattinam.3. The Public Prosecutor High Court, Madras.4. The Superintendent Central Prison, Tiruchirapalli.5. The Joint Secretary to GovernmentPublic (Law and order) Fort St. George,Madras-9.H.C.P.No.1311 of 2007TS (CO)kk 26/12