P.Rathinam v. The District Collector and District Magistrate Coimbatore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.1.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1791 of 2007 P.Rathinam.. PetitionerVs.

The District Collector and District Magistrate Coimbatore District Coimbatore.

The Secretary to Government of Tamil Nadu Prohibition & Excise Department Fort St.George, Chennai-9... RespondentsPetition filed under Article 226 of the Constitution of India toissue Habeas Corpus as stated therein. For Petitioner : Mr.A.M.Rahamath AliFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Made by P.D.DINAKARAN,J.)The first respondent herein clamped an order of detention as against the detenu K.V.P.Raja @ Govindaraj @ Viswanathan @Viswanathan @ Gobinath @ Venkitapathy, son of Kuppusamy, aged about43 years, as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda and has to be detained under the provisions of the Tamil Nadu Prevention of DangerousActivities 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).2.1. The detention order was passed on the basis of the ground case in Crime No.38 of 2007 on the file of Coimbtore District CrimeBranch for the offence punishable under Sections 406, 467 and 420, https://hcservices.ecourts.gov.in/hcservices/ IPC, complaint of which was given by one Jeyachandran, Joint ManagingDirector, Durairaj Mills Limited, on 22.6.2007. In his complaint, he has stated that the detenu purchased clothes to the tune ofRs.24,39,435/- and remitted Rs.14,50,000/- by way of Canara Bank andUTI Bank cheques. But, the UTI Bank cheques for the balance amount of Rs.9,89,435/- were dishonoured for want of funds. When the detenuwas contacted over phone, he assured to settled the amount. As the amount was not settled, the complainant went to the house of thedetenu, where he was abused him with filthy language and threatened that he would kill him.2.2. Apart from the above, the detaining authority also took note of four adverse cases pending against the detenu, viz., CrimeNo.242/200 on the file of Coimbatore City Crime Branch and CrimeNos.9/2005, 11/2006 and 31/2007 on the file of Coimbatore DistrictCrime Branch for the offence under Sections 420, 409, 120(b), 419,420 read with 409 and 420 read with 109, IPC.2.

The detaining authority, having satisfied that the detenuis indulging in activities which are prejudicial to maintenance of public order, passed the impugned order.3. Challenging the said detention, the wife of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records relating to the detention order in proceedings No.Cr.M.P.No.16/G/2007/E4, dated 6.11.2007passed by the first respondent herein, to quash the same and to direct the respondent to produce the detenu, now detained in CentralPrison, Coimbatore and set him at liberty.

The only contention advanced by the learned counsel for the petitioner is that there is a considerable delay in considering the representation and the same has rendered the detention illegal.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 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 Ram Sukrya Mhatre v.R.D. Tyagi, 1992 Supp (3) SCC 65. https://hcservices.ecourts.gov.in/hcservices/

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) 1 SCC 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 ofat 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. So the 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 Article21 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 promptitudein cases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.

In the instant case, the impugned order of detention came tobe passed on 6.11.2007. A representation was made to the Governmenton 3.12.2007 and the same was received by it 4.12.2007. Remarks were called for from the detaining authority on 4.12.2007 and the same was received by the detaining authority on 13.12.2007, after a delay of seven days, excluding two public holidays. The delay in considering the representation, as indicated above, was highlighted by the learned counsel for the petitioner. There is no convincing reply on behalf of the State for the said delay. We find some force as well as substance in this contention. There is absolutely no explanation for the delay.

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 StateGovernment and its officers continue to behave in their old, https://hcservices.ecourts.gov.in/hcservices/ lethargic fashion and like all other files rusting in the Secretariat for various reasons including red-tapism, the representation 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 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 hisrepresentation 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 andit would render the continued detention impermissible and illegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 .