A. Anbalagan v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.1.2008CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1731 of 2007A. Anbalagan.. PetitionerVs.1. State of Tamil Nadu rep. by Secretary to Government Prohibition and Excise Department Fort St.George, Chennai 600 009.2. The District Magistrate and District Collector Cuddalore District Cuddalore... RespondentsPetition under Article 226 of the Constitution of India praying fora Writ of Habeas Corpus calling for the records relating to thedetention order passed by the 2nd respondent in C3/D.O/30 of 2007 dated24.09.2007 under the Tamil Nadu Act 14/82 as Bootlegger to quash thesame and direct the respondents to produce the body of the detenuSundari, wife of the petitioner (now detained at Special Prison forWomen, Vellore)For Petitioner : Mr.R.MurugabharathiFor 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 asagainst the detenu Sundari, wife of the petitioner, as the saidauthority arrived at the subjective satisfaction that the detenu is aBootlegger and she has to be detained under Section 3(1) of the TamilNadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 24.9.2007 came to be passed bythe second respondent on the basis of the ground case said to have takenplace on 9.9.2007, complaint of which was given by one Govindaraj.According to the complainant, on 9.9.2007, when he purchased andconsumed arrack sold by the detenu, he felt giddiness, irritation in histhroat and tongue, blurring in vision and vomited. Suspecting that thedetenu had mixed some poisonous substance in the arrack to increaseintoxication, he lodged a complaint. Based on the above-said complaint,the Inspector of Police, Prohibition Enforcement Wing, Cuddaloreregistered a case in Crime No.728 of 2007 for the offences punishableunder Sections 4(1)(i), 4(1)(aa) and 4(1-A) of the Tamil NaduProhibition Act. The Inspector of Police along with his police partyconducted prohibition raid and found the detenu selling arrack. Thedetenu was arrested on the spot and the contraband was seized. Onchemical analysis, it was found that the arrack is mixed with 4.05 mg.of atropine per 100 ml. arrack and the same is a poisonous substance.2.2. Apart from the above, the detaining authority also took noteof the four adverse cases pending against the detenu, viz., CrimeNos.103/2007 and 402/2007 on the file of Cuddalore O.T. Police Stationand Crime Nos.364/2007 and 375/2007 on the file of Cuddalore ProhibitionEnforcement Wing for the offence punishable under Sections 4(1)(aaa) ofthe Tamil Nadu Prohibition Act.2.3. The detaining authority, having satisfied that the detenu isindulging in activities which are prejudicial to maintenance of publicorder and public health, passed the impugned order.3. Challenging the abovesaid detention, the husband of the detenuhas come forward with the present Habeas Corpus Petition seeking a writof habeas corpus to call for the records leading to the detention of thedetenu vide detention order dated 24.9.2007 on the file of the secondrespondent made in C3/D.O./30/2007, to quash the same and toconsequently direct the respondents herein to produce the body andperson of the detenu before this Court and to set her at liberty fromthe Special Prison for women, Vellore.4. The learned counsel for the petitioner challenges the impugnedorder of detention mainly on the ground of delay in considering therepresentation made on behalf of the detenu. Hence, we do not proposeto go into the other aspects of the case.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 . https://hcservices.ecourts.gov.in/hcservices/

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 650.5.5. It is a constitutional obligation of the Government toconsider the representation forwarded by the detenu without any delay.Though no period is prescribed by Article 22 of the Constitution for thedecision to be taken on the representation, the words “as soon as maybe” in clause (5) of Article 22 convey the message that therepresentation should be considered and disposed of at the earliest. Butthat does not mean that the authority is pre-empted from explaining anydelay which would have occasioned in the disposal of the representation.The court can certainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering the representation,such delay will adversely affect further detention of the prisoner. Inother words, 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. Sothe test is not the duration or range of delay, but how it is explainedby the authority concerned. Even the reason that the Minister was ontour and hence there was a delay of five days in disposing of therepresentation was rejected by the Apex Court holding that when theliberty of a citizen guaranteed under Article 21 of the Constitution ofIndia is involved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reached theMinister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objecting to the orderof detention dated 24.9.2007, a representation was made on behalf of thedetenu on 6.11.2007, which was received by the Government on 9.11.2007.Remarks were called for from the detaining authority on 9.11.2007, whichwas received by the detaining authority on 12.11.2007. The detainingauthority, in turn, called for parawar remarks from the sponsoringauthority on 13.11.2007 and the same was received on 14.11.2007. Thedetaining authority sent it to the Government on 15.11.2007. Theremarks was received by the Government on 16.11.2007. The file was https://hcservices.ecourts.gov.in/hcservices/ circulated on 19.11.2007 and the same was considered by the UnderSecretary and the Additional Secretary on 19.11.2007 itself. TheHon'ble Minister considered the file on 20.11.2007. But, the rejectionorder was prepared on 23.11.2007 with a delay of three day and sent tothe detenu on 26.11.2007. The delay in considering the representation,as indicated above, was highlighted by the learned counsel for thepetitioner. There is no convincing reply on behalf of the State for thesaid delay. We find some force as well as substance in this contention.There is absolutely no explanation for the delay. 7. At this juncture, a reference to the decision of the Apex Courtin Kundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3SCC 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, continueto be dealt with in the same fashion. The Government and itsofficers will not give up their habit of maintaining a consistentattitude of lethargy. So also, this Court will not hesitate inquashing the order of detention to restore the ‘liberty andfreedom’ to the person whose detention is allowed to become badby the Government itself on account of his representation notbeing 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 of representationwould be a breach of the constitutional imperative and it would renderthe continued detention impermissible and illegal, vide K.M. AbdullaKunhi v. Union of India, (1991) 1 SCC 476 .9. The delay which stands unexplained is fatal to the detentionorder attracting Article 22 of the Constitution of India and therefore,the petition must succeed and the same is ordered as prayed for.The detenu is directed to be set at liberty forthwith unless her custodyis required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ 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 Cuddalore District Cuddalore.3. The Superintendent Special Prison for Women Vellore.4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9.5. The Public Prosecutor High Court, Madras.1 cc To Mr.R.Murugabharathi, Advocate, SR.1137. HCP No.1731 of 2007. SGL(CO)RVL 30.01.2008