Shajakhan v. The Secretary to Government Prohibition and Excise Department Secretariat Chennai 9.2

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1432 of 2007Shajakhan.. PetitionerVs1. The Secretary to Government Prohibition and Excise Department Secretariat Chennai 9.2. The District Collector & District Magistrate Coimbatore district Coimbatore... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus as stated therein.For Petitioner : Mr.S.A.SundaramurthyFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detentionas against the petitioner-detenu Shajakhan, son of Sulaiman, asthe said authority arrived at the subjective satisfaction thatthe said detenu is a Goonda and he has to be detained underSection 3(1) of the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Officers,Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. On the basis of a complaint lodged by one P.Gunasekaran@ Chandru that on 2.4.2007 at about 7.00 pm, while he was in hishouse situate at Door No.61, Convent Garden I Street, KangayamRoad, Tiruppur, along with his family members, the detenu alongwith five associates, threatened him and his family members at thepistol point and looted 100 sovereign gold jewels worth aboutRs.3,00,000/- and cash of Rs.25,000/-, a case was registered inCrime No.218/2007 on the file of Tiruppur North Police Station,for the offence punishable under Section 395 IPC and Section 25 ofthe Indian Arms Act and the detenu was arrested and remanded tojudicial custody.2.2. Apart from the above, the detaining authority also tooknote of an adverse case pending against the detenu in Crime No.66of 2007 on the file of Kamanaickenpalayam Police Station for theoffence punishable under Section 395 IPC and Section 25 of theIndian Arms Act2.3. The detaining authority, having satisfied that thedetenu is indulging in activities which are prejudicial tomaintenance of public order, passed the impugned order.3. Challenging the said detention, the detenu himself hascome forward with the present Habeas Corpus Petition seeking awrit of habeas corpus to direct the respondents to produce therecords pertaining to his detention, by order of detention passedby the second respondent in Cr.M.P.No.8/G/2007/E4, dated14.6.2007, to set aside the same and to direct the respondents tocause production of body and person of the detenu before thisCourt and to set him at liberty.4. Heard Mr.S.A.Sundaramurthy, learned counsel for thepetitioner and Mr.N.R.Elango, learned Additional Public Prosecutorfor the respondents.5. The only contention advanced by the learned counsel forthe petitioner is that there is considerable delay in consideringthe representation and the same has rendered the detentionillegal.6.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point. https://hcservices.ecourts.gov.in/hcservices/

6.2. 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, beforeit is confirmed according to the procedure laid down under therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 .6.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal bythe State Government. Expedition is the rule and delay defeatsmandate of Article 22(5) of the Constitution of India, vide RamSukrya Mhatre v. R.D. Tyagi, 1992 Supp (3) SCC 65.6.4. 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 650.6.5. 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 authorityconcerned. Even the reason that the Minister was on tour andhence there was a delay of five days in disposing of therepresentation was rejected by the Apex Court holding that whenthe liberty of a citizen guaranteed under Article 21 of theConstitution of India is involved, the absence of the Minister athead quarters is not sufficient to justify the delay, since thefile could be reached the Minister with utmost promptitude incases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417. https://hcservices.ecourts.gov.in/hcservices/

7. In the instant case, the impugned order of detention cameto be passed on 14.6.2007. A representation was made to theGovernment and the same was received by it on 26.6.2007. Remarkswere called for from the detaining authority on 27.6.2007 and theremarks were received from the detaining authority by theGovernment on 9.7.2007. The file was considered by the UnderSecretary and Additional Secretary on 10.7.2007. The Hon'bleMinister rejected the representation of the detenu on 11.7.2007,however the rejection letter was prepared on 16.7.2007, viz.,after a delay of three working days, excluding two publicholidays. The delay in considering the representation, asindicated above, was highlighted by the learned counsel for thepetitioner. There is no convincing reply on behalf of the Statefor the said delay. We find some force as well as substance inthis contention. There is absolutely no explanation for thisdelay. 8. 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, theState Government and its officers continue to behave intheir old, lethargic fashion and like all other filesrusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprived ofhis liberty, continue to be dealt with in the same fashion.The Government and its officers will not give up theirhabit of maintaining a consistent attitude of lethargy. Soalso, this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to theperson whose detention is allowed to become bad by theGovernment itself on account of his representation notbeing disposed of at the earliest.” 9. 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 .10. The delay which stands unexplained would fatalise thedetention attracting Article 22 of the Constitution of India andtherefore, the petition must succeed and the same is orderedas prayed for. The detention order dated 14.6.2007 is set https://hcservices.ecourts.gov.in/hcservices/ aside. The detenu is directed to be set at liberty forthwithunless his custody is required in connection with any other case.ATRSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government Prohibition and Excise Department Fort St. George Chennai 9.2. The District Collector & District Magistrate Coimbatore district Coimbatore.3. The Superintendent Central Prison Coimbatore.4. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9.5. The Public Prosecutor, High Court, Madras.MS(CO)SR/7.1.2008H.C.P.No.1432 of 2007