Lalitha v. The Secretary to the Government Prohibition and Excise Department

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.1682 of 2007 Lalitha.. PetitionerVs.

The Secretary to the Government Prohibition and Excise Department Fort St.George, Chennai 600 009.

The District Magistrate and District Collector Nagappattinam District Nagappattinam... RespondentsPetition under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus as stated therein calling upon the production of the records relating to the detention order dated7.10.2007 made in detention Order C.O.C.No.58/2007 passed by the second Respondent herein quash the same and direct the respondents to produce the body of the detenu Veerapathiran who has been detained in Central Prison at Thiruchirappalli before this Court and set him at liberty. For Petitioner : Mr.T.P.SenthilkumarFor 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 against the detenu Veerapathiran, son of the petitioner, as the said authority arrived at the subjective satisfaction that the detenu isa Bootlegger and he has to be detained under Section 3(1) of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Officers, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982).2.1.

The detaining authority, having satisfied that the detenuis indulging in activities which are prejudicial to maintenance of public order and public health, passed the impugned order.3. Challenging the abovesaid detention, the mother of thedetenu has come forward with the present Habeas Corpus Petitionseeking a writ of habeas corpus to call for the records leading to the detention of the detenu vide detention order dated 7.10.2007 on the file of the second respondent made in C.O.C.No.58/2007, to quash the same and to consequently direct the respondents herein to produce the body and person of the detenu before this Court and to set him at liberty from the Central Prison at Tiruchirappalli.

The learned counsel for the petitioner challenges the impugned order of detention mainly on the ground of delay in considering the representation made on behalf of the detenu. Hence, we do not propose to go into the other aspects of the case.5.1. Before delving into the issue relating to the delay as contended 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 suggests that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before itis confirmed according 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 the Constitution of India includes right to expeditious disposal by the State Government. 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 the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.

It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words “as soon as may be” in clause (5) of Article 22 convey the message 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 the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. If delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. 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 the duration or range of delay, but how it is explained by the authority concerned. Even the reason that the Minister was on tour and hence there was a delay of five days in disposing of the representation was rejected by the ApexCourt holding that when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved, the absence of the Minister at head quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmostpromptitude in cases involving the vitally important fundamental right of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC417. https://hcservices.ecourts.gov.in/hcservices/

Coming to the case on hand, admittedly, objecting to the order of detention dated 7.10.2007, a representation was made on behalf of the detenu on 18.10.2007, which was received by the Government on 19.11.2007. Remarks were called for from the detaining authority on 20.11.2007, which was received by the detaining authority on 22.11.2007. The detaining authority, inturn, called for parawar remarks from the sponsoring authority on22.11.2007 itself and the same was received on 22.12.2007, with adelay of twenty days, excluding ten public holidays. The detaining authority sent it to the Government on 26.12.2007. The remarks was received by the Government on 31.12.2007. The file was circulated on2.1.2008 and the same was considered by the Under Secretary and the Additional Secretary on 2.1.2008 itself. The Hon'ble Ministerconsidered the file on 3.1.2008. The rejection order was prepared on 8.1.2008 and sent to the detenu on 8.1.2008 itself. The delay in considering the representation, as indicated above, was highlighted by the learned counsel for the petitioner. There is no convincing reply on behalf of the State for the said delay. We find some forceas well as substance in this contention.

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 repeatedly over the 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 the Secretariat for various reasons including red-tapism, the representation 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 maintaininga consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the ‘liberty and freedom’ to the person whose detention isallowed to become bad by the Government itself on account of his representation not being disposed of at the earliest.”

That apart, it is a settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC476. https://hcservices.ecourts.gov.in/hcservices/

The delay which stands unexplained is fatal to the detention order attracting Article 22 of the Constitution of Indiaand 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 custody is required in connection with anyother case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATRTo1. 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 Nagappattinam District Nagappattinam.3. The Superintendent Central Prison Tiruchirappalli.4. The Public Prosecutor High Court, Madras.5. The Joint Secretary to GovernmentPublic (Law and order) DepartmentFort St. Gorge, Chennai-9.1 cc to Mr.T.P. Senthilkumar, Advocate, sr. 6492 HCP No.1682 of 2007. ASM (CO)kk 15/2