Jothilakshmi v. The Secretary to Government of Tamil Nadu, Prohibition and Excise Dept. & 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.1683 of 2007 Jothilakshmi... Petitioner vs.

The Secretary to Government of Tamil Nadu, Prohibition and Excise Dept., Fort St. George, Chennai-9.

District Collector & District Magistrate, Kancheepuram District, Kancheepuram.... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpuscalling for the records of the detention order made inB.D.F.G.I.S.S.V.No.66/2007 dated 23.10.2007 passed by the District Collector and District Magistrate, KancheepuramDistrict, Kancheepuram the second respondent herein and setaside the same and direct the respondents to produce thedetenue before the Hon'ble Court and set the detenue Siva,S/o.Raman, M/A.30,now confined at Central Prison, Puzhal, Chennai at liberty..For Petitioner: Mr.N.SudharsanFor 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 by name Siva, by the second respondent inBDFGISSV.No.66/2007, branding him as a Bootlegger under https://hcservices.ecourts.gov.in/hcservices/ Section 3(1) of the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of1982), is being challenged in this writ petition by the wife of the detenu.2. On the morning of 2.10.2007, when the Inspector of Police and his police party were on their routine raids, they found the detenu selling diluted rectified spirit behind a bush. On seeing the police, the persons who gathered there for consuming arrack, disappeared, but the detenu was encircled and arrested by the police. Police secured the remaining rectified spirit and vessels used for selling. A case was registered in Palur Police Station Cr.No.177/2007 under Sections 4(1)(i), 4(1)(aaa), 4(1-A)(ii) of the Tamil Nadu Prohibition Act r/w 6 & 11of RS Rules 2000 and the detenu was sent to judicial custody. Sample rectified spirit was sent for chemical analysis and the Chemical Analyst has opined that the sample contained atropine, which is poisonous.

The detaining authority, taking note of the above ground case as well as eight adverse cases of similar nature, viz.,three on the file of same police station in Crime Nos.174/06,7/07 and 40/07 and the other five cases on the file of PEW,Chengalpattu Crime Nos.7/05, 18/05, 56/06, 16/07 and 150/07 and having arrived at the subjective satisfaction that there is acompelling necessity to detain the detenu in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order and public health, ordered his detention dubbing him as a Bootlegger.

The learned counsel for the petitioner challenges the impugned order of detention only on the ground of delay in considering the representation dated 5.11.2007 made on behalf of the detenu. Hence, we do not propose to go into other aspects of the case, as the said ground has to succeed.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.5.2.Article 22(5) of the Constitution of India suggests that the obligation of the government is to offer the detenu an https://hcservices.ecourts.gov.in/hcservices/ opportunity of making a representation against the order, before it is 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 RamSukrya 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) 1SCC 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 of at 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. Sothe 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 indisposing of the representation was rejected by the Apex Courtholding 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 utmost promptitude in cases involving the vitally important https://hcservices.ecourts.gov.in/hcservices/ fundamental right of a citizen, vide Rajammal v. State of T.N.,(1999) 1 SCC 417.

Coming to the case on hand, admittedly, objecting to the order of detention dated 23.10.2007, a representation dated5.11.2007 was made on behalf of the detenu, which was received by the Government on 12.11.

Remarks were called for from the detaining authority on 14.11.07, who, in turn, called forparawar remarks from the sponsoring authority on 15.11.2007.Though the sponsoring authority sent the remarks to the detaining authority on 16.11.2007, the report was sent to the Government only on 21.11.2007 i.e., after five days, which is not properly explained. Even if the intervening holidays, viz.,17.11.07 and 18.11.07 (being Saturday and Sunday), are excluded, the delay of three days in sending the report to the Government is admittedly unexplained and inexcusable. Thereafter, on receipt of the report on 23.11.2007, the file was circulated on 27.11.2007, on which date, the Under Secretary and the Additional Secretary considered the same. The Ministerconcerned dealt with the file on 28.11.2007 and rejected it. However, the rejection letter was prepared only on 4.12.07, here again there is delay of four days (excluding 1.12.07 and2.12.07, being Saturday and Sunday), which is also not explained. Thereafter, the rejection letter was sent and served on the detenu on 6.12.2007.7.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 repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a 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 is allowed to become bad by the Government itself on account of his https://hcservices.ecourts.gov.in/hcservices/ 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 SCC 476.