Jayamma v. The District Collector and District Magistrate Villupuram District Villupuram

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.2.2008CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1649 of 2007Jayamma.. PetitionerVs.1. The District Collector and District Magistrate Villupuram District Villupuram.2. The Secretary to Government Prohibition and Excise Department Fort St. George, Chennai 600 009... Respondents-----Petition under Article 226 of the Constitution of India prayingfor a Writ of Habeas Corpus as stated therein.-----For Petitioner : Mr.R.SrinivasFor Respondents : Mr.N.R.Elango Additional Public Prosecutor-----O R D E R(Made by P.D.DINAKARAN,J.)The first respondent herein clamped an order of detention asagainst the detenu Kaliyan, husband of the petitioner, as the saidauthority arrived at the subjective satisfaction that the detenu is aBootlegger and he has to be detained under Section 3(1) of the TamilNadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Officers, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. On 7.10.2007, the Inspector of Police, ArakandanallurPolice Station, along with police party, conducted prohibition raidat Thanikalampattu village. At the back side of his house, thedetenu was found pouring some liquid into a tumbler from a plasticcan and giving it to a person standing in front of him and alsoreceiving money from that person. On seeing the police people, theperson who drank it ran away. The detenu also tried to escape fromthat place, but he got caught by the police. A white colour plasticcan with 3 litres of arrack and two lorry tubes each containing 60litrs of arrack were recovered. The detenu was arrested at 9.00hours and a case was registered in Crime No.462 of 2007 underSection 4(1)(i), 4(1)(aaa) and 4(1-A) of the Tamil Nadu ProhibitionAct. Samples of arrack were taken and were sent for chemicalanalysis, which disclosed that the arrack was mixed with atropine of2.6mg% W/V.2.2. Apart from the above, the detaining authority also tooknote of the five adverse cases pending against the detenu, viz.,Crime Nos.145/2006, 208/2006 and 311/2006 on the file ofArakandanallur Police Station and Crime Nos.353 and 936 of 2007 onthe file of Tirukoilur Prohibition Enforcement Wing for the offencepunishable under Sections 4(1)(a), 4(1)(aaa) and 4(1-A) of the TamilNadu Prohibition Act.2.3. The detaining authority, having satisfied that the detenuis indulging in activities which are prejudicial to maintenance ofpublic order and public health, passed the impugned order.3. Challenging the abovesaid detention, the wife of the detenuhas come forward with the present Habeas Corpus Petition seeking awrit of habeas corpus to call for the records leading to thedetention of the detenu vide detention order dated 24.10.2007 on thefile of the first respondent made in Ref.No.C2/46946/2007, to quashthe same and to consequently direct the respondents herein toproduce the body and person of the detenu before this Court and toset him at liberty from the Central Prison, Cuddalore.4. The learned counsel for the petitioner challenges theimpugned order of detention mainly on the ground of delay inconsidering the representation made on behalf of the detenu. Hence,we do not propose to go into the other aspects of the case.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 it https://hcservices.ecourts.gov.in/hcservices/ is confirmed according to the procedure laid down under the relevantprovisions 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 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 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 saythat the delay was very short. Even longer delay can as well beexplained. So the test is not the duration or range of delay, buthow it is explained by the authority concerned. Even the reasonthat the Minister was on tour and hence there was a delay of fivedays in disposing of the representation was rejected by the ApexCourt holding that when the liberty of a citizen guaranteed underArticle 21 of the Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient to justify thedelay, since the file could be reached the Minister with utmostpromptitude in cases involving the vitally important fundamentalright of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC417.6. Coming to the case on hand, admittedly, objecting to theorder of detention dated 24.10.2007, a representation was made onbehalf of the detenu on 5.12.2007, which was received by the https://hcservices.ecourts.gov.in/hcservices/ Government on 6.12.2007. Remarks were called for from the detainingauthority on 7.12.2007, which was received by the detainingauthority on 10.12.2007. The detaining authority, in turn, calledfor parawar remarks from the sponsoring authority on 10.12.2007itself and the same was received on 12.12.2007. The detainingauthority sent it to the Government on 12.12.2007 itself. Theremarks was received by the Government on 14.12.2007. The file wascirculated on 17.12.2007 and the same was considered by the UnderSecretary and the Additional Secretary on 17.12.2007 itself. TheHon'ble Minister considered the file on 18.12.2007. But, therejection order was prepared on 27.12.2007 with a delay of six days,excluding three public holidays and sent to the detenu on28.12.2007. The delay in considering the representation, asindicated above, was highlighted by the learned counsel for thepetitioner. There is no convincing reply on behalf of the State forthe said delay. We find some force as well as substance in thiscontention. There is absolutely no explanation for the delay. 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, 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 maintaininga consistent attitude of lethargy. So also, this Court willnot hesitate in quashing the order of detention to restorethe ‘liberty and freedom’ to the person whose detention isallowed to become bad by the Government itself on account ofhis representation 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 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 SCC 476.9. The delay which stands unexplained is fatal to the detentionorder attracting Article 22 of the Constitution of India and https://hcservices.ecourts.gov.in/hcservices/ therefore, the petition must succeed and the same is ordered asprayed for. The detenu is directed to be set at liberty forthwithunless his custody is required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarATRTo1. The Secretary to Government Prohibition and Excise Department Fort St. George, Chennai 600 009.2. The District Collector and District Magistrate Villupuram District Villupuram.3. The Superintendent Central Prison, Cuddalore.4.The Joint Secretary to Govt., Public (Law & Order) Department,Fort Saint George, Chennai-9.5. The Public Prosecutor High Court, Madras.+1cc to Mr.R.Srinivas, Advocate Sr 6336SA (CO)km/16.2. HCP No.1649 of 2007.