Ammu v. The State of Tamil Nadu

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.1672 of 2007Ammu... Petitioner vs.1. The State of Tamil Nadu, Rep. by the Secretary to Govt., Prohibition and Excise (XIV) Dept., Chennai-9.2. The District Magistrate & District Collector, Vellore District.... Respondents PRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.V.RaghavachariFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order of detention dated 31.10.2007, clamped on the detenue byname Ponnarasi, by the second respondent in C3.D.O.No.98 of 2007,branding her as a Bootlegger under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982),is being challenged in this writ petition by the daughter of the detenu. https://hcservices.ecourts.gov.in/hcservices/

2. On 22.9.2007 at about 14.00 hours, when the Inspector of Policeand his police party were on their routine raids, they found the detenueselling illicit arrack to the public behind a thorny bush. On seeing thepolice, the persons who gathered there for consuming arrack,disappeared, but the detenue was encircled and arrested by the police.Police secured the remaining arrack and vessels used for selling. Acase was registered in Arakkonam Taluk Police Station Cr.No.392/2007under Sections 4(1)i, 4(1)aaa, 4(1-A)ii of the Tamil Nadu ProhibitionAct and the detenu was sent to judicial custody. Sample arrack was sentfor chemical analysis and the Chemical Analyst has opined that thesample contained atropine, which is poisonous.3. The detaining authority, taking note of the above ground case aswell as three adverse cases of similar nature on the file of same policestation in Crime Nos.16/06, 124/07 and 268/07 and having arrived at thesubjective satisfaction that there is a compelling necessity to detainthe detenu in order to prevent her from indulging in the activitieswhich are prejudicial to the maintenance of public order and publichealth, ordered her detention dubbing her 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 12.11.2007 made on behalf of the detenue. Hence,we do not propose to go into other aspects of the case, as the saidground has to succeed.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 .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. 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 decisionto be taken on the representation, the words “as soon as may be” inclause (5) of Article 22 convey the message that the representationshould be considered and disposed of at the earliest. But that does notmean that the authority is pre-empted from explaining any delay whichwould have occasioned in the disposal of the representation. The courtcan certainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering the representation,such delay will adversely affect further detention of the prisoner. Inother words, 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. Sothe test is not the duration or range of delay, but how it is explainedby the authority concerned. Even the reason that the Minister was ontour and hence there was a delay of five days in disposing of therepresentation was rejected by the Apex Court holding that when theliberty of a citizen guaranteed under Article 21 of the Constitution ofIndia is involved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reached theMinister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objecting to the orderof detention dated 31.10.2007, a representation dated 12.11.2007 wasmade on behalf of the detenue, which was received by the Government on16.11.07. Remarks were called for from the detaining authority on19.11.07, who, in turn, called for parawar remarks from the sponsoringauthority on 21.11.2007. But, the sponsoring authority sent the remarksonly on 28.11.2007, i.e., after a delay of seven days, which is notproperly explained. Even if the intervening holidays, viz.,24.11.07 and25.11.07 (being Saturday and Sunday), are excluded, the delay of fivedays, is admittedly unexplained and inexcusable. Thereafter, the reportwas sent to the Government on 28.11.07, which was received by theGovernment on 30.11.07. On 4.12.07, the file was circulated and theUnder Secretary and the Additional Secretary considered the same on5.12.07. The Minister concerned dealt with the file on 6.12.2007 andrejected it. Thereafter, the rejection letter was prepared and servedon the detenu on 8.12.2007.7.At this juncture, a reference to the decision of the Apex Courtin Kundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3SCC 194 is apposite: https://hcservices.ecourts.gov.in/hcservices/ "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, continueto be dealt with in the same fashion. The Government and itsofficers will not give up their habit of maintaining a consistentattitude of lethargy. So also, this Court will not hesitate inquashing the order of detention to restore the ‘liberty andfreedom’ to the person whose detention is allowed to become badby the Government itself on account of his representation notbeing 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 renderthe continued detention impermissible and illegal, vide K.M. AbdullaKunhi v. Union of India, (1991) 1 SCC 476.9. As already stated, there is delay of five days in sending theparawar remarks by the sponsoring authority, which remained unexplainedand hence, in our considered opinion, the detention order is vitiated onthis ground. Accordingly, the order of detention is set aside and theHabeas Corpus Petition is allowed. The detenue is directed to be set atliberty forthwith unless her presence is required in connection with anyother case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo: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, Vellore District.3. The Superintendent, Special Prison for Women, Vellore.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9.1 cc To Mr.V.Raghavachari, Advocate, SR.1746.H.C.P.No.1672 of 2007 AKR(CO)RVL 01.02.2008