Senthilkumar @ Koolai Senthil v. The District Magistrate & District Collector, Coimbatore District, Coimbatore

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.1676 of 2007Senthilkumar @ Koolai Senthil... Petitioner vs.1. The District Magistrate & District Collector, Coimbatore District, Coimbatore.2. The Secretary to Government Prohibition and Excise Dept., Secretariat, Fort St. George, Chennai-9.3. The Inspector of Police, Tiruppur South Police Station, Coimbatore 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.G.KarthikeyanFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order of detention dated 11.10.2007, clamped on thepetitioner/detenu by the first respondent in Cr.M.P.No.13/G/2007,branding him as a Goonda under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982), is being challenged in this writ petition by the detenu https://hcservices.ecourts.gov.in/hcservices/ himself.2. The ground case which led the detaining authority to pass theimpugned order of detention is that on 1.9.2007 at about 11.45 a.m.,due to previous enmity, the detenu along with others attacked oneArumugham and cut him with aruvals indiscriminately on various partsof his body. On seeing this, one Kumar, (complainant) and othersshouted and the detenu and others apprehending at the crowd escapedfrom the spot. On the basis of the complaint, a case in CrimeNo.964/2007 on the file of Tiruppur South Police Station wasregistered against the detenu and others for offences under Sections147, 148, 448 and 302 IPC. During investigation, the detenu wasarrested and after interrogation, was sent to Court for judicialremand.3. The detaining authority, taking note of the above ground caseas well as two adverse cases on the file of same police station inCrime Nos.931/06 and 543/07 for various offences including theoffence under Section 302 IPC, and having arrived at the subjectivesatisfaction that there is a compelling necessity to detain thedetenu in order to prevent him from indulging in the activities whichare prejudicial to the maintenance of public order and public peace,ordered his detention dubbing him as a Goonda. 4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay inconsidering the representation dated 24.10.2007 made on behalf of thedetenu. Hence, we do not propose to go into other aspects of thecase, as the said ground 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 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. Coming to the case on hand, admittedly, objecting to the orderof detention dated 11.10.07, a representation dated 24.11.07 was madeon behalf of the detenu, which was received by the Government on29.10.07. Remarks were called for from the detaining authority on30.10.07, who, in turn, called for parawar remarks from thesponsoring authority on 2.11.2007. But, the sponsoring authoritysent the remarks to the detaining authority only on 19.11.2007, i.e.,after a delay of seventeen days, which is not properly explained.Even if the intervening holidays, viz.,3.11.07, 4.11.07, 8.11.07,10.11.07, 11.11.07, 17.11.07 and 18.11.07 (being Saturdays andSundays as well as public holidays), are excluded, the delay of tendays in sending the parawar remarks to the detaining authority isadmittedly unexplained and inexcusable. Thereafter, the report wassent to the Government on 20.11.07, on receipt of which, the file wascirculated and on 21.11.07, it was considered by the Under Secretary,the Additional Secretary and the Minister concerned, who rejected therepresentation. Thereafter, the rejection letter was prepared on23.11.07 and sent to the detenu on 26.11.07 and served on 28.11.2007.7.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: 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,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. As already stated, there is inordinate delay on the part ofthe sponsoring authority in sending the parawar remarks called for bythe detaining authority, which stands unexplained and hence, in ourconsidered opinion, vitiates the impugned detention order.Accordingly, the order of detention is set aside and the HabeasCorpus Petition is allowed. The detenu is directed to be set atliberty forthwith unless his presence is required in connection withany other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sra https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9.2. The District Collector & District Magistrate, Coimbatore District Coimbatore. 3. The Superintendent, Central Prison, Coimbatore.4. The Joint Secretary to Government,Public [Law and Order] Department, Fort St. George, Chennai 9.5. The Public Prosecutor,High Court, Madras.6. The Inspector of Police,Tiruppur South Police Station,Coimbatore District.H.C.P.No.1676 of 2007cu[co]gp/4.2.