Nithya v. The Secretary to Govt

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1428 of 2007Nithya.. PetitionerVs1. The Secretary to Govt., Prohibition and Excise Dept., Secretariat, Chennai.2. District Revenue Officer and In-charge District Collector and District Magistrate, Thiruvarur District, Thiruvarur... RespondentsPetition filed under Article 226 of the Constitution of India for issue ofWrit of Habeas Corpus as stated therein.For Petitioner:Mr.V.ParthibanFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, wife of the detenu, by name Elangovan, who wasincarcerated at Central Prison, Tiruchirappalli, by an order dated25.5.2007 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 Goonda, has filed this petition seeking writ of Habeas Corpus tocall for the records in connection with the order of detention passedC.O.C.No.10/2007, to set aside the same and to direct the respondents toproduce the detenu before this Court and set at liberty. https://hcservices.ecourts.gov.in/hcservices/

2. On the basis of the complaint lodged by one Rajkumar that on theevening of 13.5.2007, when he was proceeding to the railway station toreceive his aunt's daughter, the detenu and two others waylaid him,brandished a knife and demanded the valuables he had and that when herefused, they forcibly took away the mobile phone and a cash of Rs.195/-from him. In the melee, the complainant got injured and when he raisedalarm, the taxi drivers tried to apprehend the accused, but theybrandished the knife and threatened them. However, the traffic headconstables apprehended them and handed over to the Inspector of Police,Thiruvarur Town police station, who arrested the accused and registered acase in Crime No.180 of 2007 under Sections 392, 397 and 506(ii) IPC andlater, they were produced before Judicial Magistrate, Thiruvarur, forjudicial remand.3. The second respondent, taking note of the above ground case andfinding three adverse cases on the file of same police station, in CrimeNos.145/04 for offences under Sections 41(2) Cr.P.C. @ 399 IPC, 556/2004for offences under Sections 120(b), 148, 324, 302 r/w 149 IPC and 371/2006for the offence under Section 399 IPC., having satisfied that there iscompelling necessity to detain the detenu in order to prevent him fromindulging in such activities which are prejudicial to the maintenance ofpublic order, ordered his detention dubbing him as a Goonda. 4. Since the learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay in considering therepresentation of the detenu, we do not propose to go into other aspects,as the said ground has to succeed.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. https://hcservices.ecourts.gov.in/hcservices/

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 orlapse 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 dated 25.5.2007, a representation was made on behalf of thedetenu, which was received by the Government on 25.6.2007. Remarks werecalled for from the detaining authority on 26.6.2007, who, in turn, calledfor parawar remarks from the sponsoring authority and the same werereceived on 6.7.2007. Thereafter, the file was circulated on 9.7.2007, onwhich date, the Under Secretary and the Additional Secretary consideredit. The Minister concerned dealt with the file on 10.7.2007 and rejectedthe same. However, the rejection letter was prepared only on 16.7.2007with a delay of six days, which is not properly explained. Even if weexclude the intervening holidays, viz. 14.7.2007 and 15.7.2007 (beingSaturday and Sunday), there is delay of four days in preparing therejection order, which is admittedly unexplained and inexcusable.Thereafter, the rejection letter was sent on 18.7.2007 and served on thedetenu on 21.7.2007. 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: https://hcservices.ecourts.gov.in/hcservices/ "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.” 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, there is delay of four days in preparing therejection letter, as referred to above, which, in our considered opinion,rendered the detention illegal and hence, we are inclined to allow thispetition. 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. https://hcservices.ecourts.gov.in/hcservices/

2. The District Revenue Officer and In-charge District Collector and District Magistrate, Thiruvarur District, Thiruvarur.3. The Superintendent Central Prison, Tiruchirappalli. (In duplicate for Communication to Detenu)4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law & Order) Fort St. George, Madras-9.+1 cc to Mr.S.Nageshwaran, Advocate Sr.No.72697.TS(CO)DCP/7.1H.C.P.No.1428 of 2007