Sambar @ K.Ramachandran v. The District Magistrate and District Collector Vellore District Vellore & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 8.1.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1688 of 2007Sambar @ K.Ramachandran.. PetitionerVs.1. The District Magistrate and District Collector Vellore District Vellore.2. The Secretary to Government Government of Tamilnadu Prohibition & Excise Department Fort St.George, Chennai-9.PRAYER: Petition filed under Article 226 of the Constitution of Indiato issue Habeas Corpus calling for the records of th first respondentherein in C3.D.No. 72/2007 setting aside the order passed thereindated 22.8.2007 produce the detenu before the Hon'ble Court andsetting the detenu by name Sambar @ K. Ramachandran, Son of Kannan atLiberty.For Petitioner : Mr.S.SasikumarFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The first respondent herein clamped an order of detention asagainst the petitioner/detenu, as the said authority arrived at thesubjective satisfaction that the said detenu is a Drug Offender and https://hcservices.ecourts.gov.in/hcservices/ he has to be detained under Section 3(1) of the Tamil Nadu Preventionof Dangerous Activities of Bootleggers, Drug Offenders, ForestOfficers, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).2.1. The order of detention dated 22.8.2007 came to be passed bythe first respondent on the basis of the ground case in Crime No.40of 2007 on the file of NIB CID, Vellore for the offences punishableunder Sections 8(c) read with 20(b)(ii)(B) of the Narcotic Drugs andPsychotropic Substances Act. It is stated that on 17.7.2007 at 0800hours, an informer informed the Sub-Inspector of Police, NIB CID,Vellore over phone that the detenu is selling ganja. Based on thesaid information, the Sub Inspector of Police along with police partyconducted raid and found the detenu selling ganja and receivingmoney. The police party nabbed the detenu and seized the contraband.A case as referred to above was registered and the detenu wasremanded. The Doctor in his report observed that regular intake ofganja is dangerous to life. 2.2. Apart from the above, the detaining authority also tooknote of three adverse cases pending against the detenu, viz., CrimeNo.8 of 2007 on the file of Ranipet Police Station for the offencepunishable under Section 8(c) read with 20(b)(ii)(A) of the NDPS Act;and Crime Nos.23 and 33 of 2007 on the file of Vellore NIB CID forthe offence punishable under Section 8(c) read with 20(b)(ii)(A) ofthe NDPS Act.2.3. The detaining authority, having satisfied that the detenuis indulging in activities which are prejudicial to maintenance ofpublic order and public health, passed the impugned order.3. Challenging the said detention, the detenu himself haspreferred this Habeas Corpus Petition seeking a writ of habeas corpusto direct the respondents to produce the detenu before this Court,now confined in Central Prison, Salem and to call for the records ofthe respondents relating to the order of detention vide proceedingsC3.D.O.No.72/2007, dated 22.8.2007, to set aside the same and to setthe detenu at liberty.4. Heard the learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor for therespondents. https://hcservices.ecourts.gov.in/hcservices/

5. The only contention advanced by the learned counsel for thepetitioner is that there is considerable delay in considering therepresentation and the same has rendered the detention illegal.6.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.6.2. Article 22(5) of the Constitution of India suggests thatthe obligation of the government is to offer the detenu anopportunity of making a representation against the order, before itis confirmed according to the procedure laid down under the relevantprovisions of law, vide K.M. Abdulla Kunhi v. Union of India, (1991)1 SCC 476 .6.3. 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 65.6.4. 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 650.6.5. 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 the https://hcservices.ecourts.gov.in/hcservices/ 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 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 417.7. In the instant case, the impugned order of detention came tobe passed on 22.8.2007. A representation was made to the Governmenton 25.9.2007 and the same was received by it 27.9.2007. Remarks werecalled for from the detaining authority on 28.9.2007 and the saidrepresentation was received on 1.10.2007 by the detaining authority.Parawar remarks were called for from the sponsoring authority by thedetaining authority on 1.10.2007 itself. But, the remarks of thesponsoring authority were received by the detaining authority only on11.10.2007, viz., after a delay of 7 days, excluding three publicholidays. The delay in considering the representation, as indicatedabove, was highlighted by the learned counsel for the petitioner.There is no convincing reply on behalf of the State for the saiddelay. We find some force as well as substance in this contention. 8. 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 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.” 9. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in considering the https://hcservices.ecourts.gov.in/hcservices/ representation. 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 .The delay on fourteen days which stands unexplained is fatal tothe detention attracting Article 22 of the Constitution of India andtherefore, the petition must succeed and the same is ordered asprayed for. The detention order dated 25.9.2007 is set aside.The detenu is directed to be set at liberty forthwith unless hiscustody is required in connection with any other case.SasiSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1. The District Magistrate and District Collector Vellore District Vellore.2. The Secretary to Government Government of Tamilnadu Prohibition & Excise Department Fort St.George, Chennai-9.3. The Public Prosecutor High Court, Madras.4.The Superintendent of Central Prison, Salem.5.The Joint Secretary to Govt,Public Law and order Department,Fort St George, Chennai.9.TS (co)sg 24/01/08H.C.P.No.1688 of 20078.1.2008