Senthamil Selvi v. The State of Tamil Nadu

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.1331 of 2007Senthamil Selvi.. PetitionerVs1. The State of Tamil Nadu, Rep. by its Secretary to Govt., Prohibition and Excise Dept., Fort St. George, Chennai.2. The District Magistrate & District Collector, Nagapattinam District... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.R.ShivakumarFor Respondents:Mr.P.Kumaresan Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, wife of the detenue by name Jaisankar, who wasdetained at Central Prison, Tiruchirppalli, by an order dated22.7.2007 of the second respondent under the provisions of the TamilNadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders,Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (TamilNadu Act 14 of 1982) branding him as a Bootlegger, seeks a writ ofHabeas Corpus to call for the records in connection with the orderof detention passed in C.O.C.No.32 of 2007, to set aside the sameand to direct the respondents to produce him before this Court andset him at liberty.2. The ground case, which led to the passing of the detentionorder is that on 1.7.2007 at 5.30 hours, while conducting https://hcservices.ecourts.gov.in/hcservices/ prohibition raid at Kiliyanur village, the Inspector of Police,Perambur Police Station, found the detenu selling illicit arrack.On seeing the police party, persons who had come there to consumethe illicit arrack took to their heels, but the detenu wasapprehended by the police. On the basis of confession statementgiven by him, a case in Cr.No.392/2007 was registered for offencesunder Section 4(1)(i) 4(1)(aaa) r/w 4(1-A) of the Tamil NaduProhibition Act. The sample of illicit arrack seized was sent forChemical Analysis and it was found admixed with 7.9 mgs ofatropine".3.The second respondent, taking note of the above ground caseand finding that the detenu came to the adverse notice of theauthorities in six cases of alike nature, viz.in CrimeNos.199/2004, 435/2004, 501/2004 and 42/2005 on the file ofPerambur police station and in Crime Nos.105/2006 and 880/2007,having satisfied that there is compelling necessity to detain thedetenu in order to prevent him from indulging in such activities,which are prejudicial to the maintenance of public order and publichealth, 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 detaining authority in sending the remarks to theGovernment. Hence, we do not propose to go into other aspects ofthe 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 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 .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 mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre v. R.D. Tyagi, 1992 Supp (3) SCC 65.5.4.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 321and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650. https://hcservices.ecourts.gov.in/hcservices/

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,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 reachedthe Minister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.6.Coming to the case on hand, admittedly, objecting to theorder of detention dated 22.7.2007, a representation dated Nil wasmade on behalf of the detenu, which was received by the Governmenton 8.8.2007. Remarks were called for from the detaining authorityon 9.8.2007, who, in turn, called for parawar remarks from thesponsoring authority on 13.8.2007. Even though the detainingauthority received the parawar remarks on 22.8.2007, it was sent tothe Government only on 10.9.2007, after a delay of 19 days, whichis not properly explained. Even excluding the interveningholidays, viz. 25.8.2007, 26.8.2007, 1.9.2007, 2.9.2007, 8.9.2007and 9.9.2007 (being Saturdays and Sundays), there is delay of 13days in sending the remarks, which is admittedly unexplained andinexcusable. Thereafter, the file was submitted on 17.9.2007 andit was considered by the Under Secretary and the AdditionalSecretary on 18.9.2007. The Minister concerned dealt with thefile on 19.9.2007 and rejected the same. The rejection letter wasprepared on 24.9.2007 and sent to the detenu on 25.9.2007 andserved on 27.09.2007.7.At this juncture, a reference to the decision of the Apex https://hcservices.ecourts.gov.in/hcservices/ Court 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.” 8.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 SCC476.9.In the instant case, there is delay of 13 days on the partof the detaining authority in sending the remarks to theGovernment, as referred to above, and the same, in our consideredopinion, vitiates the impugned order of detention. We are,therefore, inclined to allow this petition. In the result, the order of detention is set aside. Thedetenu is directed to be set at liberty forthwith unless hispresence is required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sraTo:1. The Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009.2. The District Magistrate & District Collector, Nagapattinam District.3. The Superintendent Central Prison, Tiruchirppalli.4. The Public Prosecutor, High Court, Madras.5.The Joint Secretary to Govt. Public (Law and Order)Fort St. George, Chennai -9.KM (CO)km/17.12.H.C.P.No.1331 of 2007