M.Vijaya v. The Secretary to the Govt. 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.1341 of 2007M.Vijaya.. PetitionerVs1. The Secretary to the Govt. of Tamil Nadu, Prohibition and Excise Dept., Fort St. George, Chennai.2. The District Magistrate & District Collector, Nagapattinam District, Nagapattinam. .. RespondentsPetition filed under Article 226 of the Constitution of India for issue ofWrit of Habeas Corpus as stated therein.For Petitioner:Mr.T.P.SenthilkumarFor 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 Mathi @ Mathiyazhagan,who was detained at Central Prison, Tiruchirppalli, by an order dated24.7.2007 of the second respondent under the provisions of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) brandinghim as a Bootlegger, seeks a writ of Habeas Corpus to call for the recordsin connection with the order of detention passed in C.O.C.No.33 of 2007,to set aside the same and to direct the respondents to produce him beforethis Court and set him at liberty.2. The ground case, which led to the passing of the detention orderis that on 7.7.2007, while conducting prohibition raid at Nagakudaiyanvillage, the Sub-Inspector of Police attached to Prohibition EnforcementWing, Nagapattinam, found the detenu selling illicit arrack. On seeing thepolice party, persons who had come there to consume the illicit arracktook to their heels, but the detenu was apprehended by the police. On hisconfession, a case in Cr.No.1470/2007 was registered for offences underSections 4(1)(aa) r/w 4(1-A) of the Tamil Nadu Prohibition Act. The https://hcservices.ecourts.gov.in/hcservices/ sample of illicit arrack seized was sent for Chemical Analysis and it wasfound admixed with 3.1 mg w/v per 100 ml of atropine.3.The second respondent, taking note of the above ground case andfinding that the detenu came to the adverse notice of the authorities infive cases of alike nature, two on the file of the Prohibition EnforcementWing, Nagapattinam in Crime Nos.1430/2006 and 1464/2007, and three on thefile of Kariyappattinam Police station in Crime Nos.125/2006, 115/2007 and130/2007, having satisfied that there is compelling necessity to detainthe detenu 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 the impugnedorder of detention only on the ground of delay in considering therepresentation on two occasions, one the part of the sponsoring authorityin sending the parawar remarks to the detaining authority and the other bythe Government in preparing the rejection letter. Hence, we do notpropose to go into other aspects of the case.5.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.5.2.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 .5.3.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 65.5.4.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 321 andRaghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.5.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 or https://hcservices.ecourts.gov.in/hcservices/ lapse 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 417.6.Coming to the case on hand, admittedly, objecting to the order ofdetention, a representation dated 23.7.2007 was made on behalf of thedetenu, which was received by the Government on 7.9.2007. Remarks werecalled for from the detaining authority on 8.9.2007 and on receipt of thesame, the detaining authority called for parawar remarks from thesponsoring authority on 13.9.2007. But, the sponsoring authority sent theremarks only on 19.9.2007, after a delay of six days, which is notproperly explained. Even if we exclude the intervening holidays, viz.15.9.2007 and 16.9.2007 (being Saturday and Sunday), there is delay offour days in sending the parawar remarks, which is inexcusable.Thereafter, the file was submitted on 26.9.2007 and on 27.9.2007, theUnder Secretary, the Additional Secretary and the Minister concerned dealtwith the file and the Minister rejected the representation. Eventhereafter, the rejection letter was prepared only on 5.10.2007, i.e.after 8 days, which also remained unexplained. The rejection letter wasserved on the detenu on 10.10.2007.7.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 Courtwill 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.” https://hcservices.ecourts.gov.in/hcservices/

8.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 476.9.In the instant case, admittedly there is delay on the the part ofthe sponsoring authority in sending the parawar remarks as well as on thepart of the Government in preparing the rejection letter, as referred toearlier, and the same, in our considered opinion, vitiates the impugnedorder of detention. We are, therefore, inclined to allow this petition. In the result, the order of detention is set aside. The detenu isdirected to be set at liberty forthwith unless his presence is required inconnection with any other case.sraSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo: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 Government of Tamil Nadu, Public (Law & Order) Department, Fort Saint George, Chennai-9.+1 cc to Mr.T.P.Senthilkumar, Advocate Sr.No.71871.NG(CO)dcp/13.12H.C.P.No.1341 of 2007