Reetha v. 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.1537 of 2007Reetha... Petitioner vs.1. State, rep. by the Secretary to Government, Home, Prohibition and Excise Dept., Fort Saint George, Chennai-9.2. The District Magistrate & District Collector, Vellore District, Vellore.... Respondents PRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus to calling for the recordsof the second respondent, pertaining to the order made inC3/D.O.No.89/2007 dated 17.10.2007, in detaining the detenu underthe Tamilnadu Act 14 of 1982 of a Bootlegger and quash the same anddirect the respondent to produce the detenu, namely, Rajendran, Sonof Manickam, who is detained at the Central Prison, Vellore, beforethis Hon'ble Court and set him at liberty.For Petitioner:Mr.O.S.Thilak PasumbadiarFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order of detention dated 17.10.2007, clamped on the detenuby name Magendiran by the second respondent in C3/D.O.No.89/2007,branding him as a Bootlegger under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders, https://hcservices.ecourts.gov.in/hcservices/ Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil NaduAct 14 of 1982), is being challenged in this writ petition by thewife of the detenu.2. On 24.09.2007, the complainant lodged a complaint beforethe Sub Inspector of Police, Tirupattur Town Police stationalleging that on 24.09.2007 at about 7.00 a.m., he consumed thearrack sold by the detenu and on consumption, he developed burningsensation in stomach, throat and chest and he also felt blurring ofhis vision. Since the complainant felt something unusual was mixedin the arrack, which has affected his health immediately, he lodgedthe above said complaint. The Sub Inspector of Police registered acase in Cr.No.779/2007 under Sections 4(1)(i),(aaa), 4(1-A)ii ofTNP Act r/w 328 IPC and proceeded to the place where the detenu wasselling arrack. The detenu was found indulging in selling arrackand he was arrested and later, sent to Court for remand. Thesample of arrack seized was found admixed with 6.1% mgms. Per 100ml. of atropine.3. The detaining authority, taking note of the above groundcase as well as four adverse cases of similar nature on the file ofsame police station in Crime Nos.404/05, 1218/05, 389/06 and 253/07and having arrived at the subjective satisfaction 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 hisdetention dubbing him as a Bootlegger. 4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay inconsidering the representation dated 26.11.2007 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 ofIndia, (1991) 1 SCC 476 . https://hcservices.ecourts.gov.in/hcservices/

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. Coming to the case on hand, admittedly, objecting to theorder of detention dated 17.10.2007, a representation dated26.11.2007 was made on behalf of the detenu, which was received bythe Government on the same day and remarks were called for from thedetaining authority, who, in turn, called for parawar remarks from https://hcservices.ecourts.gov.in/hcservices/ the sponsoring authority on 28.11.2007. But, the sponsoringauthority sent the remarks only on 10.12.2007, after a delay oftwelve days, which is not properly explained. Even if theintervening holidays, viz.,1.12.07, 2.12.07, 8.12.07 and 9.12.07(being Saturdays and Sundays) are excluded, there is delay of eightdays in sending the parawar remarks, which is admittedlyunexplained and inexcusable. Thereafter, the report was sent andreceived by the Government on 11.12.2007. The file was circulatedon 13.12.2007, and the Under Secretary, Additional Secretary andthe Minister concerned considered the same on 14.12.2007 andrejected it. The rejection letter was prepared on 17.12.2007, senton 18.12.2007 and served on 19.12.2007. 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 unexplained delay of eight daysin sending the parawar remarks, referred to above, which hasrendered the detention illegal and hence, the petition has tosucceed on the ground. Accordingly, the order of detention is set https://hcservices.ecourts.gov.in/hcservices/ aside and the Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence isrequired in connection with any other case.SraSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To:1. The Secretary to Government, Home, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9.2. The District Collector & District Magistrate, Vellore District, Vellore.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.Sa (co)dv/1.2.H.C.P.No.1537 of 2007