Vasuki v. The Secretary to the Government, Prohibition and Excise Dept., Fort St. George, Chennai-9 & Ors.

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.1665 of 2007Vasuki... Petitioner vs.1. The Secretary to the Government, Prohibition and Excise Dept., Fort St. George, Chennai-9.2. The District Magistrate & District Collector, Thiruvarur District, Thiruvarur.... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.N.Duraisamyfor M/s.T.P.Senthil Kumar For Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order of detention dated 23.10.2007, clamped on the detenu byname Veeraiyan, by the second respondent in C.O.C.No.18 of 2007, brandinghim as a Bootlegger under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), is being challengedin this writ petition by the wife of the detenu. https://hcservices.ecourts.gov.in/hcservices/

2. On the morning of 27.9.2007, when the Inspector of Police and hispolice party were on their routine raids, they found the detenu sellingillicit arrack to the public at the back side of his house at Pallankoilvillage. On seeing the police, the persons who gathered there forconsuming arrack, disappeared, but the detenu was encircled and arrestedby the police. Police secured the remaining arrack and vessels used forselling. A case was registered in Thiruthuraipoondi ProhibitionEnforcement Wing Cr.No.295/2007 under Sections 4(1)(aaa), 4(1)(i) r/w 4(1-A) of the Tamil Nadu Prohibition Act and the detenu was sent to judicialcustody. Sample arrack was sent for chemical analysis and the ChemicalAnalyst has opined that the sample contained atropine, which is poisonous.3. The detaining authority, taking note of the above ground case aswell as ten adverse cases of similar nature on the file of same policestation in Crime Nos.18/05, 102/05, 211/06, 240/06, 5/07, 139/07, 168/07,200/07, 248/07 and 264/07 and having arrived at the subjectivesatisfaction that there is a compelling necessity to detain the detenu inorder to prevent him from indulging in the activities which areprejudicial to the maintenance of public order and public health, orderedhis detention dubbing him as a Bootlegger. 4. The learned counsel for the petitioner challenges the impugnedorder of detention only on the ground of delay in considering therepresentation dated 2.11.2007 made on behalf of the detenu. Hence, we donot propose to go into other aspects of the case, as the said ground hasto 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. https://hcservices.ecourts.gov.in/hcservices/

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 23.10.2007, a representation dated 2.11.2007 was made onbehalf of the detenu, which was received by the Government on 19.11.07.Remarks were called for from the detaining authority on 20.11.07, who, inturn, called for parawar remarks from the sponsoring authority on1.12.2007. But, the sponsoring authority sent the remarks only on17.12.2007, i.e., after a delay of sixteen days, which is not properlyexplained. Even if the intervening holidays, viz.,2.12.07, 8.12.07,9.12.07, 15.12.07 and 16.12.07 (being Saturdays and Sundays), areexcluded, the delay of eleven days, is admittedly unexplained andinexcusable. Thereafter, the report was sent to the Government on20.12.07, which was received by the Government on 24.12.07. On 26.12.07,the file was circulated and the Under Secretary and the AdditionalSecretary considered the same on 27.12.07. The Minister concerned dealtwith the file on 28.12.2007 and rejected it. Thereafter, the rejectionletter was prepared and served on the detenu.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: https://hcservices.ecourts.gov.in/hcservices/ "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. As already stated, there is delay of eleven days in sending theparawar remarks by the sponsoring authority, which remained unexplainedand hence, in our considered opinion, the said delay has rendered theorder of detention illegal. Accordingly, the order of detention is setaside and the Habeas Corpus Petition is allowed. The detenu is directedto 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, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/

2. The District Collector & District Magistrate, Thiruvarur District, Thiruvarur.3. The Superintendent, Central Prison, Thiruchirapalli.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary, Public (Law & Order), Fort St. George, Chennai-9.MDR(CO)DCP.1.2H.C.P.No.1665 of 2007