Akbar Ali @ Sathali @ Vikram @ Deepak v. State of Tamilnadu

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.1647 of 2007Akbar Ali @ Sathali @ Vikram @ Deepak... Petitioner vs.1. State of Tamilnadu, rep. by its Secretary to Govt., Prohibition & Excise Dept., Fort St. George, Chennai-9.2. The Commissioner of Police, Greater Chennai, Chennai.... Respondents PRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus call for the records related topetitioner's detention under Tamil Nadu Act 15/82 vide detentionorder dated 05.10.2007 on the file of the second respondent hereinmade in proceedings No.381/2007, quash the same as illegal andconsequently direct the respondents herein to produce the saidpetitioner namely Akbar Ali @ Sathali @ Vikram @ Deepak before thisHonourable Court and set the petitioner at liberty from detention nowdetained in Central Prison, Puzhal, Chennai 66.For Petitioner:Mr.C.C.ChellappanFor Respondents :Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detention asagainst the petitioner/detenu, as the said authority arrived at thesubjective satisfaction that the petitioner/detenu is a ImmoralTraffic Offender and has to be detained under the provisions of theTamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, https://hcservices.ecourts.gov.in/hcservices/ Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil NaduAct 14 of 1982).2.1.On the basis of the telephonic call made by one Johnson Rajato the Inspector of Police, Anti Vice Squad, Chennai Police, that thesaid Johnson Raja was approached by the detenu, a pimp and his brokerfor indulging in a Immoral Trafficking offence and was informed thathe can take a girl of his choice if he comes near MedavakkamChozhinganallur junction, the Inspector of police along with thepolice party proceeded to the spot at about 19.00 hours on 24.8.2007and on being identified by the said Johnson Raja, the detenu wasfollowed and arrested along with two others. Confessional statementswere recorded and recoveries were made. The detenu along with otherswere brought to the police station and a case in Anti Vice SquadPolice Station Crime No.74 of 2007 was registered for offences underSections 3(2)(a), 4(1) and 5(1)(a) and 7(1) of the Immoral TrafficPrevention Act. The detenu and other accused were sent to Court forjudicial remand.2.2. Apart from the above, the detaining authority also took noteof four adverse cases on the file of Anti Vice Squad Police Stationin Crime Nos.86/2005, 14/2007, 15/2007 and 33/2007 registered forsimilar offences.2.3.The detaining authority, having satisfied that there iscompelling necessity to detain the detenu in order to prevent himfrom indulging in activities which are prejudicial to the maintenanceof public health and order, ordered his detention dubbing him as aImmoral Traffic Offender. 3. Challenging the said detention, the detenu himself has comeforward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to call for the records relating to the detention orderin proceedings No.381/2007 dated 5.10.2007 passed by the secondrespondent herein, to quash the same and to direct the respondents toproduce him, now detained in Central Prison, Puzhal, Chennai, and sethim at liberty.4. The only contention advanced by the learned counsel for thepetitioner is that there is considerable delay in considering therepresentation and the same has rendered the detention illegal.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 . 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 mandate ofArticle 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 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. In the instant case, the impugned order of detention came tobe passed on 5.10.07. A representation dated 31.10.2007 was made onbehalf of the detenu, which was received by the Government on1.11.07. Remarks were called for from the detaining authority on2.11.2007 and the same was received from the detaining authority on12.11.2007. The file was circulated on 13.11.2007 and the AdditionalSecretary considered the same on 14.11.2007. The Minister concerneddealt with the file on 15.11.2007 and rejected the representation.However, the file was received from circulation only on 21.11.2007,after a delay of six days and thereafter, the rejection letter wasprepared, and sent and served on the detenu on 23.11.2007. Even if https://hcservices.ecourts.gov.in/hcservices/ the intervening holidays, viz. 20.11.2007 and 21.11.2007 (beingSaturday and Sunday) are excluded, there is still a delay of fourdays in sending the file and preparing the rejection letter. Thesaid delay in considering the representation, as indicated above, washighlighted by the learned counsel for the petitioner. There is noconvincing reply on behalf of the State for the said delay. We findsome force as well as substance in this contention. 7.At this juncture, a reference to the decision of the Apex Courtin 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 be supineindifference, 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. The delay which stands unexplained is fatal to the detentionorder attracting Article 22 of the Constitution of India andtherefore, the petition must succeed and the same is ordered asprayed for. Consequently, the order of detention is set aside. Thedetenu is directed to be set at liberty forthwith unless his presenceis required in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ sraTo:1. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9.2. The Commissioner of Police, Greater Chennai, Chennai.3. The Superintendent, Central Prison, Puzhal, Chennai.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government,Public [Law and Order] Department,Fort St. George, Chennai 9.H.C.P.No.1647 of 2007akr[co]gp/4.2.