Gnanambal v. The State of Tamil Nadu

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.1373 of 2007Gnanambal.. PetitionerVs1.The State of Tamil Nadu, rep. by Secretary to Govt., Home, Prohibition and Excise Dept., Fort St. George, Chennai.2.The Commissioner of Police, Greater Chennai, Egmore, Chennai... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.T.P.SekarFor Respondents :Mr.N.R.Elango, Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, mother of the detenu by name P.Moorthy, hasfiled this Habeas Corpus Petition challenging the detention orderdated 13.7.2007 of the second respondent under the provisions ofthe Tamil Nadu Prevention of Dangerous Activities of Bootleggers,Drug Offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Sand Offenders, Slum Grabbers and Video Pirates Act,1982 (Tamil Nadu Act 14 of 1982), branding the detenu as a'Goonda', to call for the records in connection with the order ofdetention passed in proceedings No.315 of 2007, to set aside thesame and to direct the respondents to produce him before this Courtand set him at liberty. https://hcservices.ecourts.gov.in/hcservices/

2. The ground case, which led to the passing of the detentionorder, came to be registered in S.5 Pallavaram Police Station CrimeNo.306 of 2007 for offences under Sections 341, 392, 397, 336 and506(2) IPC. on the basis of the complaint given by one Palani.According to the complainant, on 1.6.2007 at about 8.30 hours, whenhe was proceeding near Thennanthoppu Colony, the detenu along withhis associates wrongfully restrained and at the point of knife,threatened him to handover the money. Fearing danger to his life,the complainant raised hue and cry, on hearing which, the publiccame for his rescue, but the detenu and his associates peltedstones on them and taking away Rs.125/- and the wrist watch fromthe complainant, the detenu and his associates brandished theirknives and created panic at the spot, resulting in the trafficdislocation and taking advantage of the panic situation, theyescaped from the spot. On the basis of the crime registered, thedetenu was arrested during the course of investigation and producedbefore Judicial Magistrate, Tambaram, who remanded him to judicialcustody.3.The second respondent, taking note of the above ground caseand finding that there is an adverse case on the file of samepolice station in Crime No.295 of 2007 under Man Missing @ Section302 IPC., having satisfied himself that there is compellingnecessity to detain the detenu in order to prevent him fromindulging in such activities which are prejudicial to themaintenance of public order, ordered his detention dubbing him as a'Goonda'.4.Since the learned counsel for the petitioner assailed theorder of detention mainly on the ground of delay on the part of thedetaining authority in serving the rejection letter on the detenu,we do not propose to go into other aspects, as the said ground hasto succeed.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. https://hcservices.ecourts.gov.in/hcservices/

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 650.5.5.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 417.6.1.Coming to the case on hand, admittedly, objecting to theorder of detention, a representation was made on behalf of thedetenu on 24.8.2007, which was received by the Government on28.8.2007. Remarks were called for from the detaining authority on29.8.2007. On receipt of the remarks on 6.9.2007, the file wassubmitted and on 8.9.2007 the Under Secretary considered the sameand on 10.9.2007, the Additional Secretary and the Ministerconcerned dealt with the file and the Minister rejected therepresentation on the same day. However, the rejection letter wasprepared only on 14.9.2007, after a delay of four days, which isnot properly explained and hence, inexcusable. Thereafter, it wassent to the detenu on 17.9.2007 and served on him on 19.9.2007. https://hcservices.ecourts.gov.in/hcservices/

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 Courtrepeatedly over the past three decades, the Executive,namely, the State Government and its officers continue tobehave in their old, lethargic fashion and like all otherfiles rusting in the Secretariat for various reasonsincluding red-tapism, the representation made by a persondeprived of his liberty, continue to be dealt with in thesame fashion. The Government and its officers will not giveup their habit of maintaining a consistent attitude oflethargy. So also, this Court will not hesitate in quashingthe order of detention to restore the ‘liberty and freedom’to the person whose detention is allowed to become bad bythe Government itself on account of his representation notbeing disposed of 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 four days inpreparing the rejection letter, as referred to above, whichrendered the detention illegal. Hence, we are inclined to allowthis petition.10.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.sra https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009.2. The Commissioner of Police, Greater Chennai, Egmore, Chennai.3. The Superintendent Central Prison, Puzhal, Chennai.4. The Joint Secretary to GovernmentPublic (Law and order) DepartmentFort St. George, Chennai-9.5. The Public Prosecutor, High Court, Madras.1 cc to Mr.T.P. Sekar, Advocate, sr. 72031H.C.P.No.1373 of 2007RS (CO)kk 3/1