S.Pramila v. The Commissioner of Police, Chennai Police, Egmore, Chennai 8.2.The State of Tamil

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.1393 of 2007S.Pramila.. PetitionerVs1.The Commissioner of Police, Chennai Police, Egmore, Chennai 8.2.The State of Tamil Nadu, rep. by its Secretary to Govt., Prohibition and Excise Dept., Fort St. George, Chennai... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus calling for the records of the IstRespondent in connection with the order of the Is respondent dated13.7.2007 No. 320/BDFGISSV/2007 detaining Thiru. Ravikumar @ Ravi,Son of Shanmugam aged about 26 years as a Goonda under Tamil NaduAct 14/82 and set aside the same and direct the respondent to producethe body of the said detenue now lodged in Central Prison, Chennaibefore this Hon'ble Court and set him at liberty.For Petitioner:Mr.P.Prince PremkumarFor 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 Ravikumar @ Ravi,has filed this Habeas Corpus Petition challenging the detention orderdated 13.7.2007 of the first respondent under the provisions of theTamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982), branding the detenu as a 'Goonda', to call for therecords in connection with the order of detention passed in MemoNo.320/2007, to set aside the same and to direct the respondents toproduce him before this Court and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/

2.On 08.06.2007 the detenu and his associates inflicted cutinjuries on Sathish Kumar, brother of one Prakash, due to previousenmity and the said Sathish Kumar succumbed to the cut injuries.Based on the complaint given by Prakash, the brother of the deceased,Inspector of Police, P-5 M.K.B.Nagar Police Station registered a casein Cr.No.277/2007 under Sections 147, 148, 302 and 506(2) IPC. Thedetenu surrendered before V Metropolitan Magistrate, Egmore, Chennaion 22.06.2007.3.The second respondent, taking note of the above ground caseand finding that there are three adverse cases on the file of P-6Kodungaiyur PS; P-3 Vyasarpadi PS and P-5 MKB Nagar PS inCr.No.1328/2005; Cr.No.168/2006; Cr.No.725/ 2006 respectively andhaving satisfied himself that there is compelling necessity to detainthe detenu in order to prevent him from indulging in such activitieswhich are prejudicial to the maintenance of public order, ordered hisdetention dubbing him as a 'Goonda'.4.Since the learned counsel for the petitioner assailed theorder of detention mainly on the ground of delay in serving therejection letter on the detenu, we do not propose to go into otheraspects, as the said ground has to 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 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 476.5.3.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 the https://hcservices.ecourts.gov.in/hcservices/ Constitution 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.Coming to the case on hand, admittedly, objecting to the orderof detention, a representation was made on behalf of the detenu on21.8.2007, which was received by the Government on 22.8.2007. Remarkswere called for from the detaining authority on 23.8.2007, who, inturn, called for parawar remarks from the sponsoring authority and onreceipt of the same, it was sent to the Government on 29.8.2007.Thereafter, the file was submitted on 30.8.2007 and it was consideredby the Under Secretary and the Additional Secretary on the same day.The Minister concerned dealt with the file on 31.8.2007 and rejectedthe same. However, the rejection letter was prepared only on6.9.2007, after a delay of four days [excluding the holidays on01.09.2007 and 02.09.2007], which is not properly explained. Thedelay of four days in preparing the order of rejection, is admittedlyunexplained and inexcusable. Thereafter, the order of rejection wassent on 7.9.2007 and served on the detenu on 8.9.2007.7.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 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, the https://hcservices.ecourts.gov.in/hcservices/ representation 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.In the instant case, there is delay of four days in preparingthe rejection order, as referred to above, and the same, in ourconsidered opinion, vitiates the impugned order of detention. We are,therefore, inclined to allow this petition.10.In the result, the order of detention is set aside. Thedetenu is directed to be set at liberty forthwith unless his presenceis required in connection 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 Commissioner of Police, Chennai. 3. The Superintendent Central Prison, Chennai.4. The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/

5.The Joint Secretary to Govt, Public Ilaw & order) Department, Fort St George, Chennai-9.MRD (co)sg 04/01/08H.C.P.No.1393 of 200706.12.2007