Moorthy v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1544 of 2007Moorthy.. PetitionerVs1. The State of Tamil Nadu, rep. by its Secretary to Govt., Prohibition and Excise Dept., Chennai.2. Commissioner of Police/ Detaining Authority, Coimbatore City. .. RespondentsPetition filed under Article 226 of the Constitution of India for issue ofWrit of Habeas Corpus as stated therein.For Petitioner:Mr.N.RamuFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, who was incarcerated at Central Prison, Coimbatore,by an order dated 27.7.2007 of the second respondent under the provisionsof the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14of 1982) branding him as a Goonda, has filed this petition seeking writ ofHabeas Corpus to call for the records in connection with the order ofdetention passed C.No.57/IS/2007, to set aside the same and to direct therespondents to produce him before this Court and set at liberty.2. On the basis of the complaint lodged by one Radhakrishnan that on1.7.2007 at about 5.30 hours when he was proceeding near a Corporationschool at Kempatty Colony, the petitioner/detenu intercepted him anddemanded to part with the money he had and also at the point of knife,snatched Rs.90/- from his pocket as well as the wrist watch andbrandishing the knife against him and the public, who came for his rescue,he created terror in the minds of public resulting in a panic situation, acase was registered in B-1 Bazaar Police Station Crime No.725 of 2007 foroffences under Sections 341, 392, 397 and 506 IPC and during the course of https://hcservices.ecourts.gov.in/hcservices/ investigation, the detenu was arrested and later, produced before JudicialMagistrate No.III, Coimbatore, for judicial custody.3. The second respondent, taking note of the above ground case andfinding four adverse cases on the file of same police station, in CrimeNos.628/05, 1290/05, 274/07 and 275/2007 for offences under Sections 379,380 r/w 75 IPC., having satisfied that there is compelling necessity todetain the detenu in order to prevent him from indulging in suchactivities which are prejudicial to the maintenance of public order,ordered his detention dubbing him as a Goonda. 4. Since the learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay in considering therepresentation of the detenu, we do not propose to go into other aspects,as the said ground has 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 affectfurther detention of the prisoner. In other words, it is for the authorityconcerned to explain the delay, if any, in disposing of the https://hcservices.ecourts.gov.in/hcservices/ representation. 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.Coming to the case on hand, admittedly, objecting to the order ofdetention dated 27.7.2007, a representation was made on behalf of thedetenu on 8.10.2007, which was received by the Government on 11.10.2007.Remarks were called for from the detaining authority on 12.10.2007, who,in turn, called for parawar remarks from the sponsoring authority on15.10.2007 and the same were received on 16.10.2007. However, in spite ofthe reminder sent on 19.10.2007, the remarks were sent to the Governmentonly on 21.10.2007, after a delay of five days, which is not properlyexplained. Even if the intervening holiday is excluded, viz. 20.10.2007(being Saturday), still there is delay of four days, which is admittedlyunexplained and inexcusable. Thereafter, on receipt of the remarks on25.10.2007, the file was circulated on 29.10.2007, on which date, theUnder Secretary and the Additional Secretary considered it. The Ministerconcerned dealt with the file on 30.10.2007 and rejected the same. But,the rejection letter was prepared only on 5.11.2007 with a delay of fourdays, which is also not explained and it was sent on 6.11.2007 and servedon the detenu on 9.11.2007. 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 therepresentation. Any unexplained delay in the disposal of representation https://hcservices.ecourts.gov.in/hcservices/ would 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. In the instant case, there is inordinate delay on the part of theauthorities in considering the representation of the detenu, as referredto above, which, in our considered opinion, rendered the detention illegaland hence, we are inclined to allow this petition. In the result, the order of detention is set aside. The detenu isdirected to be set at liberty forthwith unless his presence is required inconnection with any other case.sraSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo:1. The Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009.2. The Commissioner of Police/ Detaining Authority, Coimbatore City.3. The Superintendent Central Prison, Coimbatore.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law & Order) Fort Saint George, Chennai- 9.+1 cc to Mr.N.Ramu, Advocate Sr.No.73376.PUR(CO)DCP/2.1H.C.P.No.1544 of 2007