Kubendran.. 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.1727 of 2007Kubendran.. 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 Salem District Salem... Respondents-----Petition under Article 226 of the Constitution ofIndia praying for a Writ of Habeas Corpus as stated therein.-----For Petitioner : Mrs.R.Subadra DeviFor Respondents : Mr.N.R.Elango Additional Public Prosecutor-----O R D E R(Made by P.D.DINAKARAN,J.)The second respondent herein clamped an order ofdetention as against the detenu Malar, mother-in-law of thepetitioner, as the said authority arrived at the subjectivesatisfaction that the detenu is a Bootlegger and she has tobe detained under Section 3(1) of the Tamil Nadu Preventionof Dangerous Activities of Bootleggers, Drug Offenders,Forest Officers, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (TamilNadu Act 14 of 1982).2.1. The order of detention dated 21.11.2007 came tobe passed by the second respondent on the basis of theground case said to have taken place on 27.10.2007, https://hcservices.ecourts.gov.in/hcservices/ complaint of which was given by one Velanganni. Accordingto the complainant, on 27.10.2007, when he purchased andconsumed arrack sold by the detenu, he felt giddiness,irritation in his throat and tongue, blurring in vision andvomited. Suspecting that the detenu had mixed somepoisonous substance in the arrack to increase intoxication,he lodged a complaint. Based on the above-said complaint,the Sub Inspector of Police, Gangavalli Police Stationregistered a case in Crime No.557 of 2007 for the offencespunishable under Sections 4(1)(i) and 4(1-A) of the TamilNadu Prohibition Act. The Sub Inspector of Police alongwith his police party conducted prohibition raid and foundthe detenu selling arrack. The detenu was arrested on thespot and the contraband was seized. On chemicalanalysis, it was found that the arrack is mixed with 5.8mg. of atropine per 100 ml. arrack and the same is apoisonous substance.2.2. Apart from the above, the detaining authorityalso took note of the five adverse cases pending againstthe detenu, viz., Crime Nos.4/2006, 191/2006, 335/2006,354/2006 and 332/2007 on the file of Gangavalli PoliceStation for the offence punishable under Sections 4(1)(aaa)of the Tamil Nadu Prohibition Act.2.3. The detaining authority, having satisfied thatthe detenu is indulging in activities which are prejudicialto maintenance of public order and public health, passedthe impugned order.3. Challenging the abovesaid detention, the son-in-law of the detenu has come forward with the present HabeasCorpus Petition seeking a writ of habeas corpus to call forthe records leading to the detention of the detenu videdetention order dated 21.11.2007 on the file of the secondrespondent made in CMP.No.10/B.L.A/C2/2007, to quash thesame and to consequently direct the respondents herein toproduce the body and person of the detenu before this Courtand to set her at liberty from the Special Prison forwomen, Vellore.4. The learned counsel for the petitioner challengesthe impugned order of detention mainly on the ground ofdelay in considering the representation made on behalf ofthe detenu. Hence, we do not propose to go into the otheraspects of the case. https://hcservices.ecourts.gov.in/hcservices/

5.1. Before delving into the issue relating to thedelay as contended above, it would be apt to refer the lawon the point.5.2. Article 22(5) of the Constitution of Indiasuggests that the obligation of the Government is to offerthe detenu an opportunity of making a representationagainst the order, before it is confirmed according to theprocedure 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 expeditiousdisposal by the State Government. Expedition is the rule anddelay defeats mandate of Article 22(5) of the Constitutionof India, vide Ram Sukrya Mhatre v. R.D. Tyagi, 1992 Supp(3) SCC 65.5.4. Any inordinate and unexplained delay on the partof the Government in considering the representation rendersthe detention illegal, vide Tara Chand v. State ofRajasthan, (1980) 2 SCC 321 and Raghavendra Singh v.Supdt., Distt. Jail, (1986) 1 SCC 650.5.5. It is a constitutional obligation of theGovernment to consider the representation forwarded by thedetenu without any delay. Though no period is prescribed byArticle 22 of the Constitution for the decision to be takenon the representation, the words “as soon as may be” inclause (5) of Article 22 convey the message that therepresentation should be considered and disposed of at theearliest. But that does not mean that the authority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The courtcan certainly consider whether the delay was occasioned dueto permissible reasons or unavoidable causes. If delay wascaused on account of any indifference or lapse inconsidering the representation, such delay will adverselyaffect further detention of the prisoner. In other words,it is for the authority concerned to explain the delay, ifany, in disposing of the representation. It is not enoughto say that the delay was very short. Even longer delay canas well be explained. So the test is not the duration orrange of delay, but how it is explained by the authorityconcerned. Even the reason that the Minister was on tourand hence there was a delay of five days in disposing ofthe representation was rejected by the Apex Court holding https://hcservices.ecourts.gov.in/hcservices/ that when the liberty of a citizen guaranteed under Article21 of the Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient to justifythe delay, since the file could be reached the Ministerwith utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v.State of T.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objectingto the order of detention dated 21.11.2007, arepresentation was made on behalf of the detenu on2.12.2007, which was received by the Government on5.12.2007. Remarks were called for from the detainingauthority on 7.12.2007, which was received by the detainingauthority on 10.12.2007. The detaining authority, in turn,called for parawar remarks from the sponsoring authority on11.12.2007 and the same was received on 18.12.2007, with adelay of five days, excluding two public holidays. Thedetaining authority sent it to the Government on18.12.2007. The remarks was received by the Government on26.12.2007. The file was circulated on 27.12.2007 and thesame was considered by the Under Secretary and theAdditional Secretary and the Hon'ble Minister on28.12.2007. But, the rejection order was prepared on7.1.2008 with a delay of five days, excluding five publicholidays and sent to the detenu on 8.1.2008. The delay inconsidering the representation, as indicated above, washighlighted by the learned counsel for the petitioner.There is no convincing reply on behalf of the State for thesaid delay. We find some force as well as substance in thiscontention. There is absolutely no explanation for thedelay. 7. At this juncture, a reference to the decision ofthe Apex Court in Kundanbhai Dulabhai Sheikh v DistrictMagistrate, Ahmedabad, (1996) 3 SCC 194 is apposite:"In spite of law laid down above by this Courtrepeatedly over the past three decades, theExecutive, namely, the State Government and itsofficers continue to behave in their old, lethargicfashion and like all other files rusting in theSecretariat for various reasons including red-tapism, the representation made by a person deprivedof his liberty, continue to be dealt with in thesame fashion. The Government and its officers willnot give up their habit of maintaining a consistentattitude of lethargy. So also, this Court will not https://hcservices.ecourts.gov.in/hcservices/ hesitate in quashing the order of detention torestore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by theGovernment itself on account of his representationnot being disposed of at the earliest.” 8. That apart, it is a settled law that there shouldnot be supine indifference, slackness or callous attitudein considering the representation. Any unexplained delay inthe disposal of representation would be a breach of theconstitutional imperative and it would render the continueddetention impermissible and illegal, vide K.M. AbdullaKunhi v. Union of India, (1991) 1 SCC 476 .9. The delay which stands unexplained is fatal to thedetention order attracting Article 22 of the Constitutionof India and therefore, the petition must succeed andthe same is ordered as prayed for. The detenu isdirected to be set at liberty forthwith unless her custodyis required in connection with any other case.ATRSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. 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 Salem District Salem.3. The Superintendent Special Prison for Women Vellore. https://hcservices.ecourts.gov.in/hcservices/

4.The Joint Secretary Govt,Public Law and order Department,Fort St George, Chennai-9.5. The Public Prosecutor High Court, Madras.KSJ (co)sg 31/01/08 HCP No.1727 of 2007. 9.1.2008.