Revathy v. The State of Tamilnadu & 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.1680 of 2007B.Revathy... Petitioner vs.1. The State of Tamilnadu, rep. by its Secretary Prohibition & Excise Dept., Fort St. George, Chennai-9.2. The District Collector & District Magistrate, Cuddalore District, Cuddalore.... Respondents PRAYER: Petition filed under Article 226 of theConstitution of India for issue of Writ of Habeas Corpus asstated therein.For Petitioner:Mr.R.Bharath Kumar For Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order ofdetention as against the detenu Balu, Son of RadhakrishnaNaidu, as the said authority arrived at the subjectivesatisfaction that the said detenu is a Video Pirate and hasto be detained under the provisions of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982).2.1. The detention order was passed on the basis ofthe ground case in Crime No.78 of 2007 on the file of VideoPiracy cell, CBCID, Cuddalore for offences under Section51, 52(A) r/w 63, 68(A) of Copy Right Act, 1957 and 4 and 6 https://hcservices.ecourts.gov.in/hcservices/ of Indecent Representation of Women Prohibition Act 1986 andSection 292(A) IPC, complaint of which was given by Selvaraj,Sub-Inspector of Police alleging that the detenu is sellingpirated obscene and newly released film VCDs, DVD cassettes inhis shop namely, Priya Musicals, near Kurinjipadi Bus Stand.Pursuant to the said complaint, the Inspector of Policeproceeded to the place and searched it and found certain obsceneCDs, pirated VCDs and DVDs and seized the same. Oninterrogation, the detenu admitted the offence and he wasarrested and after registration of the case, referred to above,he was sent to Court for judicial remand.2.2. Apart from the above, the detaining authority alsotook note of two adverse cases, one in Kurinjipadi P.S. CrimeNo.35/2007 and the other in Cuddalore Video Piracy Cell, CBCIDCrime No.18/2007 for similar offences.2.3.The detaining authority, having satisfied that there iscompelling necessity to detain the detenu in order to preventhim from indulging in activities which are prejudicial to themaintenance of public order, ordered his detention dubbing himas a Video Pirate. 3. Challenging the said detention, the wife of the detenuhas come forward with the present Habeas Corpus Petition seekinga writ of habeas corpus to call for the records relating to thedetention order in Memo No.C3/DO/32/2007 dated 1.10.2007 passedby the second respondent herein, to quash the same and to directthe respondents to produce the detenu, now detained in CentralPrison, Cuddalore, and set him at liberty.4. The only contention advanced by the learned counsel forthe petitioner is that there is delay in considering therepresentation and the same has rendered the detention illegal.5.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point. https://hcservices.ecourts.gov.in/hcservices/

5.2.Article 22(5) of the Constitution of India suggeststhat the obligation of the government is to offer the detenu anopportunity of making a representation against the order, beforeit is confirmed according to the procedure laid down under therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 .5.3.The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal bythe State Government. Expedition is the rule and delay defeatsmandate of Article 22(5) of the Constitution of India, vide RamSukrya 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 thedetention illegal, vide Tara Chand v. State of Rajasthan, (1980)2 SCC 321 and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1SCC 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,the words “as soon as may be” in clause (5) of Article 22 conveythe message that the representation should be considered anddisposed of at the earliest. But that does not mean that theauthority is pre-empted from explaining any delay which wouldhave 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 causedon account of any indifference or lapse in considering therepresentation, such delay will adversely affect furtherdetention of the prisoner. In other words, it is for theauthority concerned to explain the delay, if any, in disposingof the representation. It is not enough to say that the delaywas very short. Even longer delay can as well be explained. Sothe 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 Court https://hcservices.ecourts.gov.in/hcservices/ holding that when the liberty of a citizen guaranteed underArticle 21 of the Constitution of India is involved, the absenceof the Minister at head quarters is not sufficient to justifythe delay, since the file could be reached the Minister withutmost promptitude in cases involving the vitally importantfundamental right of a citizen, vide Rajammal v. State of T.N.,(1999) 1 SCC 417.6. In the instant case, the impugned order of detentioncame to be passed on 1.10.07. A representation dated 6.11.2007was made on behalf of the detenu, which was received by theGovernment on 9.11.07. Remarks were called for from thedetaining authority on the same day and the same was received bythe detaining authority on 12.11.2007. Parawar remarks werecalled for on 13.11.2007 from the sponsoring authority and itwas received on 14.11.2007 and sent to the Government on15.11.2007. On receipt of the same on 16.11.2007, the file wascirculated on 19.11.2007, on which date the Under Secretary andAdditional Secretary considered the same and the Ministerconcerned dealt with the file on 20.11.2007 and rejected therepresentation. However, the rejection letter was prepared onlyon 23.11.2007 and even thereafter, it was sent to the detenuonly on 26.11.2007 and served on him on 27.11.2007. Even if weexclude the intervening holiday, viz. 21.11.2007, being Sunday,still there is delay of two days in preparing the rejectionletter and there is delay of three days in sending the same tothe detenu. The said delay in considering the representation,as indicated above, was highlighted by the learned counsel forthe petitioner. There is no convincing reply on behalf of theState for the said delay. We find some force as well assubstance in this contention. 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, theState Government and its officers continue to behave intheir old, lethargic fashion and like all other filesrusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprivedof his liberty, continue to be dealt with in the same https://hcservices.ecourts.gov.in/hcservices/ fashion. The Government and its officers will not give uptheir habit of maintaining a consistent attitude oflethargy. So also, this Court will not hesitate inquashing the order of detention to restore the ‘libertyand 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 besupine indifference, slackness or callous attitude inconsidering the representation. Any unexplained delay in thedisposal of representation would be a breach of theconstitutional imperative and it would render the continueddetention 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 thedetention order attracting Article 22 of the Constitution ofIndia and therefore, the petition must succeed and the same isordered as prayed for. Consequently, the order of detention isset aside. The detenu is directed to be set at libertyforthwith unless his presence is required in connection with anyother 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-9.2. The District Collector & District Magistrate, Cuddalore District Cuddalore. https://hcservices.ecourts.gov.in/hcservices/

3. The Superintendent, Central Prison, Cuddalore.4.The Joint Secretary to Govt,Public Law and order Department,Fort St George, Chennai.9.5. The Public Prosecutor, High Court, Madras.•One cc to Mr. R. Bharathkumar, Advocate SR 1482/08SA (co)sg 01/02/08H.C.P.No.1680 of 200708.01.2008