Velu v. The State

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.1494 of 2007Velu... Petitioner vs.1. The State, rep. by the Secretary to Government, Prohibition and Excise Dept., Fort St. George, Chennai-9.2. The District Collector & District Magistrate, Kanchipuram District, Villupuram.... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.V.MurugesanFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order of detention dated 19.9.2007, clamped on the detenu by namePanchalai by the second respondent in BDFGISSV.No.61 of 2007, branding heras a Bootlegger 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), is being challengedin this writ petition by her nephew.2. On 24.08.2007, when the Sub Inspector of Police and his policeparty were on their routine raids, they found the detenue selling illicitarrack behind a bush. On seeing the police, persons who had gathered thereto consume arrack disappeared and the detenue was arrested. Police securedthe remaining arrack and vessels used for selling. A case was registeredin Orathy Police Station Cr.No.150/2007 under Section 4(1)(aaa), 4(1)(i),4(1-A) of the Tamil Nadu Prohibition Act r/w 6 & 11 of RS Rules, 2000 andthe detenue was sent to judicial custody. Sample arrack was sent for https://hcservices.ecourts.gov.in/hcservices/ chemical analysis and the Chemical Analyst has opined that the samplecontained atropine, which is poisonous.3. The detaining authority, taking note of the above ground case aswell as five adverse cases on the file of same police station in CrimeNos.1/03, 64/03, 129/05, 142/05 and 135/07 and having arrived at thesubjective satisfaction that there is a compelling necessity to detainthe detenue in order to prevent her from indulging in the activities whichare prejudicial to the maintenance of public order and public health,ordered her detention dubbing her as a Bootlegger. 4. The learned counsel for the petitioner challenges the impugnedorder of detention only on the ground of delay in considering therepresentation dated 25.10.2007 made on behalf of the detenue. Hence, wedo not propose to go into other aspects of the case, as the said groundhas 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 650.5.5.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 affect https://hcservices.ecourts.gov.in/hcservices/ further 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 417.6.1. Coming to the case on hand, admittedly, objecting to the orderof detention dated 19.09.2007, a representation dated 25.10.2007 was madeon behalf of the detenue, which was received by the Government on26.10.2007. Remarks were called for from the detaining authority on29.10.2007, who, in turn, called for parawar remarks from the sponsoringauthority and the same was received on 7.11.2007. The file was circulatedon 9.11.2007, on which date, the Under Secretary and the AdditionalSecretary considered the same. The Minister concerned dealt with the fileon 12.11.07 and rejected the same. However, the rejection letter wasprepared only on 21.11.2007, after a delay of nine days, which is notproperly explained. Even if the intervening holidays, viz.,17.11.07 and18.11.07 (being Saturday and Sunday) are excluded, there is delay of sevendays in preparing the rejection order, which is admittedly unexplained andinexcusable. Thereafter, it was sent to the detenu on 22.11.07 and servedon him on 23.11.2007.7.At this juncture, a reference to the decision of the Apex Court inKundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3 SCC194 is apposite:"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 the https://hcservices.ecourts.gov.in/hcservices/ representation. 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. As already stated, there is unexplained delay of seven days inpreparing the rejection order, referred to above, which has rendered thedetention illegal and hence, the petition has to succeed on the ground.Accordingly, the order of detention is set aside and the Habeas CorpusPetition is allowed. The detenue is directed to be set at libertyforthwith unless her presence is required in connection with any othercase.sraSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo:1. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9.2. The District Collector & District Magistrate, Kanchipuram District, Villupuram.3. The Superintendent, Special Prison for Women, Chennai.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary, Public (Law & Order) Fort St. George, Chennai-600 009.MDR(CO)DCP/5.2H.C.P.No.1494 of 2007