Sarasa v. The Secretary to the Government State of Tamilnadu Home

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.1651 of 2007Sarasa.. PetitionerVs.1. The Secretary to the Government State of Tamilnadu Home, Prohibition and Excise Department Fort St. George, Chennai 600 009.2. The District Magistrate and District Collector Vellore District Vellore... RespondentsPetition under Article 226 of the Constitution of India praying for aWrit of Habeas Corpus as stated therein.For Petitioner : Mr.O.S.Thilak PasumbadiyarFor Respondents : Mr.N.R.Elango Additional Public ProsecutorO R D E R(Made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detention as againstthe detenu Manju, husband of the petitioner, as the said authority arrivedat the subjective satisfaction that the detenu is a Bootlegger and he hasto be detained under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, Forest Officers,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. On 16.10.2007, the Inspector of Police, Omarabad Police Station,along with police party, conducted prohibition raid at ThennampattuMottur. At the back side of Primary School in Thennampattu, the detenuwas found pouring some liquid into a tumbler from a plastic can and givingit to a person standing in front of him and also receiving money from thatperson. On seeing the police people, the person who drank it ran away.The detenu also tried to escape from that place, but he got caught by thepolice. A while colour plastic can containing 3 litres of country arrackand two lorry tubes each containing 55 litres of country arrack wererecovered. The detenu was arrested at 17.00 hours and a case wasregistered in Crime No.462 of 2007 under Section 4(1)(i), 4(1)(aaa) and 4(1-A)(ii) of the Tamil Nadu Prohibition Act r/w Section 328 IPC. Samplesof arrack were taken and were sent for chemical analysis, which disclosedthat the arrack was mixed with atropine of 6.7mg% W/V.2.2. Apart from the above, the detaining authority also took note ofthe five adverse cases pending against the detenu, viz., CrimeNos.267/2005, 397/2005, 498/2005, 91/2006 and 373/2007 on the file ofOmarabad Police Station for the offence punishable under Sections 4(1)(aaa), 4(1-A)ii of the Tamil Nadu Prohibition Act r/w Section 328 IPC.2.3. The detaining authority, having satisfied that the detenu isindulging in activities which are prejudicial to maintenance of publicorder and public health, passed the impugned order.3. Challenging the abovesaid detention, the wife of the detenu hascome forward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to call for the records leading to the detention of thedetenu vide detention order dated 12.11.2007 on the file of the secondrespondent made in C3.D.O.No.103/2007, to quash the same and toconsequently direct the respondents herein to produce the body and personof the detenu before this Court and to set him at liberty from the CentralPrison at Vellore.4. The learned counsel for the petitioner challenges the impugnedorder of detention mainly on the ground of delay in considering therepresentation made on behalf of the detenu. Hence, we do not propose togo into the other aspects of the case.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 . 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 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 therepresentation. 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 12.11.2007, a representation was made on behalf of thedetenu, which was received by the Government on 19.12.2007. Remarks werecalled for from the detaining authority on 20.12.2007, which was receivedby the detaining authority on 24.12.2007. The detaining authority, inturn, called for parawar remarks from the sponsoring authority on24.12.2007 itself and the same was received on 3.1.2008, with a delay ofsix days, excluding four public holidays. The detaining authority sent itto the Government on 3.1.2008 itself. The remarks was received by theGovernment on 3.1.2008. The file was circulated on 8.1.2008 and the samewas considered by the Under Secretary, Additional Secretary and theHon'ble Minister on 8.1.2008 itself. The rejection order was prepared on https://hcservices.ecourts.gov.in/hcservices/

9.1.2008 and sent to the detenu on 11.1.2008. The delay in consideringthe representation, as indicated above, was highlighted by the learnedcounsel for the petitioner. There is no convincing reply on behalf of theState for the said delay. We find some force as well as substance in thiscontention. 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 representationwould 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. The delay which stands unexplained is fatal to the detentionorder attracting Article 22 of the Constitution of India and therefore,the petition must succeed and the same is ordered as prayed for.The detenu is directed to be set at liberty forthwith unless his custodyis required in connection with any other case. ATRSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government State of Tamil Nadu Prohibition and Excise Department Fort St.George, Chennai 600 009.2. The District Magistrate and District Collector Vellore District Vellore.3. The Superintendent Central Prison Vellore.4. The Public Prosecutor High Court, Madras.5. The Joint Secretary, Public (Law & Order) Fort St. George, Chennai-9.MDR(CO)DCP/15.2 HCP No.1651 of 2007.