CORAMTHE HONOURABLE MR v. The State of Tamilnadu

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.1313 of 2007Somasundari.. PetitionerVs.1. The State of Tamilnadu rep. by its Secretary Home, Prohibition & Excise Department Fort St.George, Chennai-9.2. The Commissioner of Police Greater Chennai... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue Habeas Corpus to call for the records in connectionwith the order of detention passed by the second respondent dated16.6.2007against the petitioners husband Manivannan S/o. Kumar,aged 24 years BDFGISSV/246/2007 who is confined at CentralPrison, Chennai and set aside the same and direct the respondentsto produce the detenu before this Honourable Court and set him atliberty.For Petitioner : Mr.C.V.KumarFor 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, as the said authority arrived at thesubjective satisfaction that the said detenu is a Goonda and hehas to be detained under Section 3(1) of the Tamil Nadu Preventionof Dangerous Activities of Bootleggers, Drug Offenders, ForestOfficers, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 16.6.2007 was passed on thebasis of ground case in Crime No.488 of 2007 for alleged commissionof offences under Sections 341, 336, 397 and 506(2) IPC, complaintof which was lodged by one Rajendran. According to Rajendran, on27.5.2007, while he was proceeding to Kalashetra Road near thePillaiyar Temple junction a share auto bearing Reg.No.TN 07 AE 8618crossed him and stopped and eight persons, including the detenu werein it. Four of them got down from the share auto. The associatesof the detenu, Vijayakumar and Arul inserted hands into the shirtpocket of the complainant and took away cell phone and cash ofRs.200/- and threatened to kill him. When the detenu and others gotinto auto and tried to escape, the complainant raised hue and cryand hearing that again accused and his associates got down from theauto and pelted stones on him. The public who were at the spotnoticing the atrocious activities ran for safer places out of fearof danger to their lives and properties. Based on the complaintgiven by him a case, as stated above, was registered and the detenuwas arrested. 2.2. Apart from the above, the detaining authority also took notof the four adverse cases pending against the detenu, viz.,i. Crime No.73 of 2007 registered on the file ofThiruvanmiyur Police Station for the offence punishable underSections 392 and 397 of IPC with reference to the occurrencesaid to have taken place on 25.1.2007; ii. Crime No.438 of 2007 registered on the file ofThiruvanmiyur Police Station for the offence punishable underSections 392 and 397 of IPC with reference to the occurrencesaid to have taken place on 11.5.2007;iii. Crime No.478 of 2007 registered on the file ofThiruvanmiyur Police Station for the offence punishable underSections 395 and 397 of IPC with reference to the occurrencesaid to have taken place on 25.5.2007; and iv. Crime No.479 of 2007 registered on the file ofThiruvanmiyur Police Station for the offence punishable underSections 395 and 397 of IPC with reference to the occurrencesaid to have taken place on 25.5.2007.2.3. The detaining authority, having satisfied that the detenuis indulging in activities which are prejudicial to maintenance ofpublic order, passed the impugned order. https://hcservices.ecourts.gov.in/hcservices/

3. Challenging the said detention, the wife of the detenu hascome forward with the present Habeas Corpus Petition seeking a writof habeas corpus to call for the records in connection with theorder of detention passed by the second respondent dated 16.6.2007against the detenu, who is now confined at Central Prison, Chennai,to set aside the same and to direct the respondent to produce thedetenu before this Court and to set him at 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 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 the relevantprovisions 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 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 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 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 consider https://hcservices.ecourts.gov.in/hcservices/ whether 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 saythat the delay was very short. Even longer delay can as well beexplained. So the test is not the duration or range of delay, buthow it is explained by the authority concerned. Even the reasonthat the Minister was on tour and hence there was a delay of fivedays 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 ofthe Minister at head quarters is not sufficient to justify thedelay, since the file could be reached the Minister with utmostpromptitude in cases involving the vitally important fundamentalright of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC417.7. In the instant case, the impugned order of detention came tobe passed on 16.6.2007. A representation was made to the Governmenton 6.7.2007 and the same was received by it 26.7.2007. Remarks werecalled for from the detaining authority on 27.7.2007 and the remarksof the detaining authority, after obtaining the remarks of thesponsoring authority, were received by the Government on 1.8.2007.The file was considered by the Under Secretary and the AdditionalSecretary on 6.8.2007 and the Hon'ble Minister dealt with the fileon 7.8.2007. However, the rejection order was prepared on14.8.2007, viz., after a delay of five days, excluding two publicholidays. The delay in considering the representation, as indicatedabove, was highlighted by the learned counsel for the petitioner.There is no convincing reply on behalf of the State for the saiddelay. We find some force as well as substance in this contention.There is absolutely no explanation for 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, 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 maintaininga consistent attitude of lethargy. So also, this Court willnot hesitate in quashing the order of detention to restore https://hcservices.ecourts.gov.in/hcservices/ the ‘liberty and freedom’ to the person whose detention isallowed to become bad by the Government itself on account ofhis representation not being disposed of 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 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 detention order dated 16.6.2007 is set aside.The detenu is directed to be set at liberty forthwith unless hiscustody 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 Home, Prohibition and Excise Department Fort St.George, Chennai – 9.2. The Commissioner of Police Greater Chennai Chennai.3. The Public Prosecutor High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/

4. The Superintendentcentral Prison, Puzhal, Chennai5. The Joint Secretary to GovernmentPublic (Law and order) Fort St. George,Chennai-9.1 cc to Mr.C.V. Kumar, Advocate, Sr. 71503H.C.P.No.1313 of 2007RA (CO)kk 11/12