Syed Saleem... v. The Secretary to Government, Prohibition and Excise Dept.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.01.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1434 of 2007Syed Saleem... Petitioner vs.1. The Secretary to Government, Prohibition and Excise Dept., Secretariat, Chennai-9.2. The District Collector & District Magistrate, Coimbatore District, Coimbatore.... Respondents PRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus to call for the recordsrelating to the Detention Order No.Cr.M.P.No.6/G/2007/E4, dated14.6.2007 passed by the District Collector and District Magistrate,Coimbatore District, the second respondent herein and set-aside thesame and direct the respondents to produce the body of the detenuSyed Saleem, S/o.Syed Ibrahim, aged about 27 years, the Detenu nowconfined in Central Prison, Coimbatore, before this Court and sethim at liberty forthwith.For Petitioner:Mr.S.A.SundaramurthyFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)Aggrieved by the order of detention dated 14.6.2007, clamped onthe detenu by the second respondent in C3/D.O.No.80/2007, brandinghim as a Goonda under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, Forest https://hcservices.ecourts.gov.in/hcservices/ Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of1982), the detenu himself has challenged the same in this writpetition.2.On 02.04.2007, the complainant lodged a complaint before theSub Inspector of Police, Tirupur Rural Police station alleging thaton 02.04.2007 at about 7.30 a.m., when he was in his house, sixpersons forcibly entered into the house and one among them waswearing Khaki dress resembling police uniform. Under the pretext ofenquiry, the accused asked the complainant to accompany them topolice station. When the complainant said he would change his dressand come, the accused pushed him and his family into a room andbrandished a pistol and ordered the complainant to part away withhis valuables. The accused threatened to shoot them down if theirorder was not obeyed. Thus keeping the family members underpressure and threat, the accused decamped in their vehicle with theloot. Based on the complaint, a case was registered underSection 395 IPC and Sec.25 Indian Arms Act in Cr.No.218/2007. Theinvestigating agency took up the case and continued with its usualformalities of visiting the scene of occurrence, drawing roughsketch etc. and on information nabbed one Rafeek. Based on hisinformation, the detenu and his associates were arrested.3. The detaining authority, taking note of the above groundcase as well as three adverse cases, viz. in Tiruppur South PoliceStation Crime No.27 of 2007 for offences under Sections 302, 307IPC and 27 of Indian Arms Act; in Palladam Police Station CrimeNo.54 of 2007 for the offence under Section 25(1)(b) of Indian ArmsAct; and in Kamanaicken Palayam Police Station Crime No.66 of 2007for the offence under Section 395 IPC and Section 25(1)(a) ofIndian Arms Act, and having come to the subjective satisfactionthat there is a compelling necessity to detain the detenu in orderto prevent him from indulging in the activities which areprejudicial to the maintenance of public order and public peace,ordered his detention dubbing him as a Goonda. 4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay inconsidering the representation dated 23.06.2007 made on behalf ofthe detenu. Hence, we do not propose to go into other aspects ofthe case, 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 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 of https://hcservices.ecourts.gov.in/hcservices/ 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 mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre 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 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 dated 14.06.2007, a representation dated23.06.2007 was made on behalf of the detenu, which was received bythe Government on 26.06.2007. Remarks were called for from thedetaining authority on 27.06.2007, who, in turn, called for parawarremarks on and the sponsoring authority, though received it on2.7.2007, sent the same only on 7.7.2007, after a delay of fivedays, which is not properly explained. Thereafter, the remarks were https://hcservices.ecourts.gov.in/hcservices/ sent to the Government on and the file was circulated on 9.7.2007.The Under Secretary, the Additional Secretary and the Ministerconcerned dealt with the file on 11.7.07 and rejected the same.However, the rejection letter was prepared only on 16.7.2007, aftera delay of five days and it was sent to the detenu on 17.7.07 andserved on him on 18.7.2007.6.2. From the above, it is evident that the sponsoringauthority took his own time in sending the parawar remarks to thedetaining authority and there is absolutely no satisfactoryexplanation for the same and there is also no explanation for thedelay in preparing the rejection letter.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, 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 their habitof maintaining a consistent attitude of lethargy. So also,this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by the Governmentitself on account of his representation not being disposedof 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. As already stated, there is considerably delay whileconsidering the representation of the detenu, which has renderedthe detention illegal and hence, the petition has to succeed on theground. Accordingly, the order of detention is set aside and the https://hcservices.ecourts.gov.in/hcservices/ Habeas Corpus Petition is allowed. The detenu is directed to beset at liberty forthwith unless his presence is required inconnection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo:1. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9.2. The District Collector & District Magistrate, Coimbatore District, Coimbatore.3. The Superintendent, Central Prison, Coimbatore.4. The Public Prosecutor, High Court, Madras.5.The Joint Secretary to Govt.Public (Law & Order) Dept.,Fort Saint,George, Chennai-9.AVM (CO)km/1.2.H.C.P.No.1434 of 2007