Saravanan v. State of Tamilnadu & Ors.

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.1728 of 2007Saravanan.. PetitionerVs.1. State of Tamilnadu rep. by its Secretary to Government Prohibition and Excise Department Chennai-600 009.2. The Commissioner of Police Greater Chennai Egmore, Chennai 8... Respondents-----Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.-----For Petitioner:Mr.N.RamuFor Respondents:Mr.N.R.ElangoAddl. Public Prosecutor-----O R D E R(Made by P.D.DINAKARAN,J.)The petitioner is the detenu by name Saravanan, who has beenclamped with an order of detention by the second respondent, onarriving at the subjective satisfaction that the said detenu is aGoonda and he has to be detained under the provisions of the TamilNadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Officers, Goondas, Immoral Traffic Offenders,Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (TamilNadu Act 14 of 1982), seeks to call for the records relating to the https://hcservices.ecourts.gov.in/hcservices/ order of detention made in Ref.No.317/2007 dated 13.7.2007, toquash the same and the produce the detenu, who is now confined inCentral Prison, Chennai, before this Court and set him at liberty.2. The order of detention dated 13.7.2007 was passed on thebasis of ground case in Crime No.167 of 2007 for alleged commissionof offences under Sections 341, 332, 336, 427, 307 and 506(2) IPC.On 3.7.2007, the Sub Inspector of Police, Kasimedu Police Station,along with police party, proceeded on special duty to secureabsconding accused, including the detenu herein. On receivingreliable information that the detenu and two other accused areavailable at S.N.Chetty Road, the police party rushed there. Onseeing the police party, the detenu and others tried to escape fromthe spot. When the police party surrounded them, the detenu andothers took their knives and tried to cut the Sub Inspector ofPolice on his neck, however, he escaped from the said attack. Theyalso tried cut other police party. But, they escaped from theattack. On noticing the atrocious activities, the public alsojoined the police personnel in apprehending the detenu and others.Immediately, the detenu and others rushed to the nearby bunk shop,picked up cool drink bottles and hurled the same against the policepersonnel, which broken into pieces and scattered all over theroad. The detenu and others created panic at the spot and thepublic fearing danger to their lives ran hither and thitherresulting in traffic dislocation. Hence, a case was registered andthe detenu was arrested. 3. Apart from the above, the detaining authority also tooknote of the eight adverse cases pending against the detenu in (i)Crime No.351/2002 on the file of N4 Fishing Harbour Police Stationfor the offence under Sections 332, 336, 307 and 506(ii) r/w 102IPC; (ii) Crime Nos.25 and 28/2006 on the file of B5 Harbour PoliceStation for the offence under Section 379 and 511, IPC; (iii) CrimeNos.43/2007, 44/2007, 45/2007 and 48/2007 on the file of E3 MeenjurPolice Station for the offence under Sections 447 and 379, IPC;and (iv) Crime No.35/2007 on the file of N2 Kasimedu Police Stationfor the offence under Sections 341, 323, 384 and 506(ii), IPC andhaving satisfied that the detenu is indulging in activities whichare prejudicial to maintenance of public order, passed the impugnedorder.4. The learned counsel for the petitioner challenges theimpugned order of detention mainly on the ground of delay inconsidering the representation made on behalf of the detenu.Hence, we do not propose to go into the other aspects of the case. https://hcservices.ecourts.gov.in/hcservices/

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 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 therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 .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 mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre 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 321and Raghavendra 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 anydelay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on the representation,the words “as soon as may be” in clause (5) of Article 22 conveythe message that the representation should be considered anddisposed of at the earliest. But that does not mean that theauthority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The court cancertainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering therepresentation, such delay will adversely affect further detentionof the prisoner. In other words, it is for the authority concernedto explain the delay, if any, in disposing of the representation.It is not enough to say that the delay was very short. Even longerdelay can as well be explained. So the test is not the duration orrange of delay, but how it is explained by the authority concerned.Even the reason that the Minister was on tour and hence there was adelay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizenguaranteed under Article 21 of the Constitution of India isinvolved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reached https://hcservices.ecourts.gov.in/hcservices/ the Minister 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 theorder of detention dated 13.7.2007, a representation was made onbehalf of the detenu on 29.10.2007, which was received by theGovernment on 30.10.2007. Remarks were called for from thedetaining authority on 31.10.2007, which was received by thedetaining authority on 2.11.2007. The detaining authority, inturn, called for parawar remarks from the sponsoring authority on5.11.2007 and the same was received on 8.11.2007. The detainingauthority sent it to the Government on 9.11.2007. The remarks wasreceived by the Government on 12.11.2007. The file was circulatedon 13.11.2007 and the same was considered by the Under Secretaryand the Additional Secretary on 13.11.2007 itself. The Hon'bleMinister considered the file on 14.11.2007 and returned the same on21.11.2007, with a delay of five days, excluding two publicholidays. The rejection order was prepared on 21.11.2007 itselfand sent to the detenu on 21.11.2007 itself. The delay inconsidering the representation, as indicated above, was highlightedby the learned counsel for the petitioner. There is no convincingreply on behalf of the State for the said delay. We find someforce as well as substance in this contention. There is absolutelyno explanation for the delay. 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 repeatedlyover the past three decades, the Executive, namely, theState Government and its officers continue to behave intheir old, lethargic fashion and like all other filesrusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprived ofhis liberty, continue to be dealt with in the same fashion.The Government and its officers will not give up their habitof maintaining a consistent attitude of lethargy. So also,this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by the Governmentitself on account of his representation not being disposedof at the earliest.” https://hcservices.ecourts.gov.in/hcservices/

8. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in consideringthe representation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperativeand it would render the continued detention impermissible andillegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC476.9. The delay which stands unexplained is fatal to thedetention order attracting Article 22 of the Constitution of Indiaand therefore, the petition must succeed and the same isordered as prayed for. The detenu is directed to be set atliberty forthwith unless his custody is required in connection withany other case.ATRSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai-9.2. The Commissioner of Police Greater Chennai, Egmore, Chennai-8. 3. The Superintendent Central Prison Chennai.4. The Joint Secretary to Government Public (Law and Order) Fort St. George, Chennai-9.5. The Public Prosecutor High Court, Madras.Sa (co)dv/1.2. HCP No.1728 of 2007.