B.Murthy @ Adikesavamurthy v. The Commissioner of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1371 of 2007B.Murthy @ Adikesavamurthy.. PetitionerVs1. The Commissioner of Police, Coimbatore City, Coimbatore.2. The Secretary to Govt., Govt. of Tamil Nadu, Prohibition and Excise Dept., Fort St. George, Chennai... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.L.MahendranFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Made by P.D.DINAKARAN,J.)The petitioner, who was detained at Central Prison, Coimbatore,by an order dated 8.1.2007 of the first respondent under theprovisions of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug Offenders, Forest Offenders, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982) branding him as a ImmoralTraffic Offender, seeks a writ of Habeas Corpus to call for the https://hcservices.ecourts.gov.in/hcservices/ records in connection with the order of detention passed inproceedings C.No.01/G/IS/2007, to set aside the same and to directthe respondents to produce him before this Court and set him atliberty.2. The ground case, based on which the detention order waspassed, was registered on the basis of the complaint given by oneSrinivasan. According to the complainant, on 14.12.2006 at 10.00hours, while he was standing at the bus stop, the detenu, acting as apimp, called the complainant and solicited him for prostitution.When the complainant tried to move away from the place, the detenu,at the knife point, demanded money and forcibly took away Rs.500/-from his shirt pocket. The detenu also threatened him with his lifeif he informed this to anybody. Based on the oral complaint given bythe complainant before the Inspector of Police, holding in-charge ofB-14 Kuniamuthur Police Station, the detenu and two other girls werearrested and their confessional statements, admitting the offence,were recorded. The Inspector of Police came to the police stationwith the accused and seized properties and a case in B-13 PodanurP.S. Cr.No.1845/2006 under Sections 4(2)(c), 8(b) of ITP Act andSection 386 IPC., was registered and later, the detenu was sent forjudicial remand.3.The second respondent, taking note of the above ground caseand finding that the detenu came to the adverse notice of theauthorities in two similar cases, viz. in Crime No.1237/04 on thefile of B-6 Peelamedu Police Station and in Crime No.763/05 on thefile of B-3 Kattur police station and having satisfied that there iscompelling necessity to detain the detenu in order to prevent himfrom indulging in such activities, which are prejudicial to themaintenance of public peace and public order, ordered his detentiondubbing him as a "Immoral Traffice Offender".4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay inconsidering the representation dated 28.7.2007 made on behalf of thedetenu. Hence, we do not propose to go into other aspects of thecase.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 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 . https://hcservices.ecourts.gov.in/hcservices/

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 mandate ofArticle 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 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 considerwhether 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 say thatthe delay was very short. Even longer delay can as well be explained.So the test is not the duration or range of delay, but how it isexplained by the authority concerned. Even the reason that theMinister was on tour and hence there was a delay of five days indisposing of the representation was rejected by the Apex Courtholding that when the liberty of a citizen guaranteed under Article21 of the Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitudein cases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.6.1. Coming to the case on hand, admittedly, objecting to theorder of detention dated 8.1.2007, a representation dated 15.2.2007was made on behalf of the detenu, which was received by theGovernment on 16.2.2007. Remarks were called for from the detainingauthority on 19.2.2007, who, in turn, called for parawar remarks fromthe sponsoring authority and on receipt of the same on 1.3.2007, the https://hcservices.ecourts.gov.in/hcservices/ file was circulated on 2.3.2007. The Under Secretary and the JointSecretary considered the same on 5.3.2007 and the Minister concernedconsidered the file on 6.3.2007 and rejected the same. Though therejection letter was prepared on 7.3.2007, it was sent to the detenuonly on 15.3.2007, after a delay of eight days and served on him on20.3.2007. Even if we exclude the intervening holidays, viz.10.3.2007 and 11.3.2007 (being Saturday and Sunday), there is delayof six days in sending the same, which remained unexplained andhence, inexcusable.7.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 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.” 8.That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperative andit would render the continued detention impermissible and illegal,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476.9. As already stated, the delay of six days in sending therejection letter to the detenu stands unexplained and thus, renderedthe detention illegal. Hence, the said point must succeed.Accordingly, the order of detention is set aside and the HabeasCorpus Petition is allowed. The detenu is directed to be set at https://hcservices.ecourts.gov.in/hcservices/ liberty forthwith unless his presence is required in connection withany other case.sraSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To:1. The Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009.2. The Commissioner of Police, Coimbatore City, Coimbatore.3. The Superintendent Central Prison, Coimbatore. (In duplicate for communicate to Detenu)4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St. George, Chennai-9.5. The Public Prosecutor, High Court, Madras.1 cc to Mr.L.Mahendran, Advocate, SR.72022ntk (co)dv/26.12.