Dhanalaxmi v. State of Tamil Nadu

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.1448 of 2007Dhanalaxmi.. PetitionerVs1. State of Tamil Nadu rep. by its Secretary Department of Prohibition and Excise Fort St. George, Chennai 9.2. The District Magistrate and District Collector Nagapattinam District Nagapattinam... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.For Petitioner : Mr.R.SankarasubbuFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, who is the son of detenu Mohan @ Nadavandi Mohan,son of Chandrakasan, who was incarcerated by order dated 22.9.2007 ofthe second respondent under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as aBootlegger, has preferred this writ petition for issue of a Writ ofHabeas Corpus to call for the records in connection with the order ofdetention passed by the second respondent dated 22.9.2007 in Ref.No.COC.No.55/2007 against the petitioner's son Mohan @ Nadavandi Mohan, son https://hcservices.ecourts.gov.in/hcservices/ of Chandrakasan, now confined at Central Prison, Tiruchirappalli, to setaside the same and to direct the respondents to produce the above saiddetenu before this Court and set him at liberty.2. On 11.9.2007, the Inspector of Police, Keezhaiyur PoliceStation, along with police party, conducted prohibition raid atThandavamoorthikadu. At that time, the detenu was driving a motorcycle bearing Registration No.PY-02-D-6670 rashly. On interception, theInspector found a lorry tube containing 110 litres of Pondicherry arrackin a gunny bag at the rear seat of the motor cycle. The detenu tried toescape from the spot, but the Inspector of police arrested the detenu,seized the contraband and registered a case in Crime No.232 of 2007 forthe offence punishable under Section 4(1)(aaa) r/w 4(1-A) of the TamilNadu Prohibition Act, 1937 (Transport). Samples of arrack were takenand were sent for chemical analysis, which disclosed that the arrack wasmixed with atropine of 2.9mg% W/V.3. The second respondent, taking note of this case as a ground caseand finding that there are four adverse cases pending against the detenuin Crime Nos.223 and 299 of 2007 on the file of Vailankanni PoliceStation and Crime Nos.154 and 197 of 2007 on the file of KeezhiyurPolice Station for the offence punishable under the Tamil NaduProhibition Act, having satisfied that there is a compelling necessityto detain the detenu in order to prevent him from indulging in theactivities which are prejudicial to the maintenance of public order andpublic health, ordered his detention dubbing him as a Bootlegger. 4. Since the learned counsel for the petitioner wants to restricthis submission only on the ground of delay in considering therepresentation, we do not propose to go into the other aspects, exceptto refer the delay in considering the representation as highlighted bythe counsel for the petitioner.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. https://hcservices.ecourts.gov.in/hcservices/

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 any delay.Though no period is prescribed by Article 22 of the Constitution for thedecision to be taken on the representation, the words “as soon as maybe” in clause (5) of Article 22 convey the message that therepresentation should be considered and disposed of at the earliest. Butthat does not mean that the authority is pre-empted from explaining anydelay which would have occasioned in the disposal of the representation.The court can certainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering the representation,such delay will adversely affect further detention of the prisoner. Inother words, 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. Sothe test is not the duration or range of delay, but how it is explainedby the authority concerned. Even the reason that the Minister was ontour and hence there was a delay of five days in disposing of therepresentation was rejected by the Apex Court holding that when theliberty of a citizen guaranteed under Article 21 of the Constitution ofIndia is involved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reached theMinister 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. In the instant case, the impugned order of detention came tobe passed on 22.9.2007. A representation was made to the Government andthe same was received by it 27.9.2007. Remarks were called for from thedetaining authority on 28.9.2007, which was received by the detainingauthority on 3.10.2007. The detaining authority, in turn, called forparawar remarks from the sponsoring authority on 15.10.2007, after adelay of twelve days. The remarks of the sponsoring authority wasreceived only on 1.11.2007, after a delay of seventeen days. Thedetaining authority sent the remarks to the Government on 3.11.2007 andthe same was received on 6.11.2007. Thereafter, the file was submittedon 6.11.2007 and the same was considered by the Under Secretary andAdditional Secretary on 7.11.2007 itself. The file was considered bythe Minister on 9.11.2007. The rejection letter was prepared on9.11.2007. The rejection letter was sent to the detenu on 12.11.2007and served on him on 14.11.2007. https://hcservices.ecourts.gov.in/hcservices/

6.2. Even taking note of the intervening holidays, viz.,6.10.2007, 7.10.2007, 13.10.2007 and 14.10.2007, the delay of eight dayson the part of the detaining authority in calling for parawar remarksfrom the sponsoring authority and 20.10.2007, 21.10.2007, 27.10.2007,28.10.2007 (being Saturday and Sunday), the delay of thirteen days onthe part of the Sponsoring Authority in sending remarks to the detainingauthority, which have not been properly explained, cannot be excused.7. At this juncture, a reference to the decision of the Apex Courtin Kundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3SCC 194 is apposite:"In spite of law laid down above by this Court repeatedly overthe 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, therepresentation made by a person deprived of his liberty, continueto be dealt with in the same fashion. The Government and itsofficers will not give up their habit of maintaining a consistentattitude of lethargy. So also, this Court will not hesitate inquashing the order of detention to restore the ‘liberty andfreedom’ to the person whose detention is allowed to become badby the Government itself on account of his representation notbeing 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 renderthe continued detention impermissible and illegal, vide K.M. AbdullaKunhi v. Union of India, (1991) 1 SCC 476 .9. In the instant case, there is delay of eight days in calling forparawar remarks by the detaining authority and thirteen days in sendingparawar remarks by the Sponsoring Authority to the Detaining Authority,as referred to above, and the same, in our considered opinion, vitiatethe impugned order of detention. We are, therefore, inclined to allowthis petition. https://hcservices.ecourts.gov.in/hcservices/ In the result, the order of detention dated 22.9.2007 is set aside.The detenu is directed to be set at liberty forthwith unless hispresence is required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarATR To:1. The Secretary to Government State of Tamil Nadu Prohibition and Excise Department Fort St. George, Chennai 9.2. The District Magistrate and District Collector Nagapattinam District Nagapattinam.3. The Superintendent Central Prison, Trichy.4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9.5. The Public Prosecutor, High Court, Madras.H.C.P.No.1448 of 2007 RS(CO)RVL 07.01.2008