Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.12.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1440 of 2007J.Amsa.. PetitionerVs.1. The District Collector and District Magistrate Villupuram District Villupuram2. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai-9... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India toissue Habeas Corpus as stated therein. For Petitioner : Mr.C.JohnsonFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The first respondent herein clamped an order of detention as againstthe detenu Dhigil alias Jagadeesan, son of the petitioner, as the saidauthority arrived at the subjective satisfaction that the detenu is aBootlegger and he has to be detained under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders, ForestOfficers, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 5.9.2007 came to be passed by thefirst respondent on the basis of the ground case said to have taken placeon 13.8.2007. On 13.8.2007 at about 1145 hours when the Inspector ofPolice, Prohibition Enforcement Wing, Tindivanam and his police partyconducted prohibition raid, they found the detenu selling arrack. Thedetenu was arrested on the spot and the contraband was seized. A case wasregistered in Crime No.1187 of 2007 for the offences punishable underSection 4(1-A), 4(1)(aaa), 4(1)(i) of the Tamil Nadu Prohibition Act. Onchemical analysis, it was found that the arrack is mixed with 3.18 mg. ofatropine per 100 ml. arrack and the same is a poisonous substance.2.2. Apart from the above, the detaining authority also took note ofthe five adverse cases pending against the detenu, viz., Crime Nos.252,719, 951, 976 and 1015 of 2007 on the file of the Tindivanam ProhibitionEnforcement Wing for the offences punishable under Sections 4(1-A) and 4(1)(aa) of the Tamil Nadu Prohibition Act read with Rule 7 of the TNRSRules. 2.3. The detaining authority, having satisfied that the detenu isindulging in activities which are prejudicial to maintenance of publicorder and public health, passed the impugned order.3. Challenging the abovesaid detention, the mother of the detenu hascome forward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to call for the records in proceedings No.C2/39170/2007,dated 5.9.2007 passed by the first respondent, to set aside the same andto direct the respondents to produce the detenu, now detained and confinedin the Central Prison, Cuddalore, before this Court and to set him atliberty.4. Heard the learned counsel for the petitioner and Mr.N.R.Elango, learned Additional Public Prosecutor for the respondents.5. The only contention advanced by the learned counsel for thepetitioner is that there is considerable delay in considering therepresentation and the same has rendered the detention illegal.6.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.6.2. 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 . https://hcservices.ecourts.gov.in/hcservices/

6.3. 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 65.6.4. 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 321 andRaghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.6.5. 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 417.7. In the instant case, the impugned order of detention came to bepassed on 5.9.2007. A representation was made on behalf of the detenu on14.9.2007. The said representation was received by the detainingauthority on 26.9.2007. Parawar remarks were called for from thesponsoring authority on 28.9.2007, however, the remarks of the sponsoringauthority were received by the detaining authority only on 8.10.2007,viz., after a delay of five days, excluding five public holidays. Thisdelay was highlighted by the learned counsel for the petitioner. There isno convincing reply on behalf of the State for the said delay. We findsome force as well as substance in this contention. https://hcservices.ecourts.gov.in/hcservices/

#8. At this juncture, a reference to the decision of the Apex Court inKundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3 SCC194 is apposite:"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.” 9. 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 .The delay which stands unexplained is fatal to the detentionattracting Article 22 of the Constitution of India and therefore, thepetition must succeed and the same is ordered as prayed for. Thedetention order dated 5.9.2007 is set aside. The detenu is directed tobe set at liberty forthwith unless his custody is required in connectionwith any other case.Sd/Asst. Registrar/true copy/Sub Asst. Registrarsasi/atrTo:1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/

#2. The District Collector and District Magistrate Villupuram District Villupuram.3. The Joint Secretary to Government, Public (Law and Order)Fort St.George, Chennai -9.4. The Superintendent, Central Prison, Cuddlore.5. The Public Prosecutor High Court, Madras.H.C.P.No.1440 of 2007 JRG(CO)RVL 05.01.2008