Geetha.. v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.1.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1528 of 2007Geetha.. PetitionerVs1. State, rep. by the Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai 9.2. The District Magistrate and District Collector Vellore District at Vellore... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.For Petitioner : Mr.O.S.Thilak PasumbadiarFor 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 wife of the detenu Dasarathan, son ofRaman, who was incarcerated by order dated 11.10.2007 of the secondrespondent under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)branding him as a Bootlegger, has preferred this writ petition forissue of a Writ of Habeas Corpus to call for the records inconnection with the order of detention passed by the secondrespondent dated 11.10.2007 in Ref.No.C3.D.O.No.86/2007 against thepetitioner's husband, now confined at Central Prison, Vellore, to setaside the same and to direct the respondents to produce the above https://hcservices.ecourts.gov.in/hcservices/ said detenu before this Court and set him at liberty.2. On 19.9.2007, the Sub Inspector of Police, K.V.Kuppam, alongwith police party,conducted prohibition raid at P.K.Puram, KatpadiTaluk. In a sugarcane field situate at Rusa Township, P.K.Puram,Katpadi Taluk, the detenu was found pouring some liquid into atumbler from a plastic can and giving it to a person standing infront of him and also receiving money from that person. On seeing thepolice people, the person who drank it ran away. The detenu alsotried to escape from that place, but he got caught by the police. Awhite colour plastic can with 3 litres of arrack and three lorrytubes each containing 40 litres of country arrack were recovered. Thedetenu was arrested at 15.00 hours and a case was registered in CrimeNo.237 of 2007 under Section 4(1)(i)(aaa) and 4(1-A)(ii) of the TamilNadu Prohibition Act. Samples of country arrack were taken and weresent for chemical analysis, which disclosed that the arrack was mixedwith atropine of 6.4mg% W/V.3. The second respondent, taking note of this case as a groundcase and finding that there are six adverse cases pending against thedetenu in Crime Nos.32, 82, 109, 312, 157 and 174 of 2007 on the fileof K.V.Kuppam Police Station for the offence punishable under theTamil Nadu Prohibition Act, and having satisfied that there is acompelling necessity to detain the detenu in order to prevent himfrom indulging in the activities which are prejudicial to themaintenance of public order and public health, ordered his detentiondubbing 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,except to refer the delay in considering the representation ashighlighted by the 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 anydelay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on the representation, thewords “as soon as may be” in clause (5) of Article 22 convey themessage that the representation should be considered and disposed ofat the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in thedisposal of the representation. The court can certainly considerwhether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of anyindifference or lapse in considering the representation, such delaywill adversely affect further detention of the prisoner. In otherwords, 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.So the test is not the duration or range of delay, but how it isexplained by the authority concerned. Even the reason that theMinister was on tour and hence there was a delay of five days indisposing of the representation was rejected by the Apex Courtholding that when the liberty of a citizen guaranteed under Article21 of the Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitudein cases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.6.1. In the instant case, the impugned order of detention came tobe passed on 11.10.2007. A representation was made to the Governmentand the same was received by it 20.11.2007. Remarks were called forfrom the detaining authority on 21.11.2007, which was received by thedetaining authority on 21.11.2007 itself. The detaining authority,in turn, called for parawar remarks from the sponsoring authority on23.11.2007. The remarks of the sponsoring authority was receivedonly on 30.11.2007, after a delay of seven days. The detainingauthority sent the remarks to the Government on 1.12.2007 and thesame was received on 3.12.2007. Thereafter, the file was submittedon 5.12.2007 and the same was considered by the Under Secretary andAdditional Secretary on 6.12.2007. The file was considered by theMinister on 7.12.2007. The rejection letter was prepared on11.12.2007. The rejection letter was sent to the detenu on13.12.2007 and served on him on 14.12.2007. https://hcservices.ecourts.gov.in/hcservices/

6.2. Even taking note of the intervening holidays, viz.,24.11.2007 and 25.11.2007 (being Saturday and Sunday), the delay offive days on the part of the Sponsoring Authority in sending remarksto the detaining authority, which has not been properly explained,cannot be excused.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 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,continue to be dealt with in the same fashion. The Governmentand its officers will not give up their habit of maintaining aconsistent attitude of lethargy. So also, this Court will nothesitate in quashing the order of detention to restore the‘liberty and freedom’ to the person whose detention is allowedto become 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 besupine indifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperative andit would render the continued detention impermissible and illegal,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 .9. In the instant case, there is delay of five days on the partof the sponsoring authority in sending parawar remarks to theDetaining Authority, as referred to above, and the same, in ourconsidered opinion, vitiates the impugned order of detention. Weare, therefore, inclined to allow this petition. In the result, the order of detention dated 11.10.2007 is setaside. The detenu is directed to be set at liberty forthwith unlesshis presence is required in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATR https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government State of Tamil Nadu Home, Prohibition and Excise Department Fort St. George, Chennai 9.2. The District Magistrate and District Collector Vellore District Vellore 9.3. The Superintendent Central Prison, Vellore.4. The Joint Secretary to Government, Public [Law and Order] Fort St. George, Chennai 9.5. The Public Prosecutor, High Court, Madras.H.C.P.No.1528 of 2007vc[co]gp/11.1.