Sahayamary v. Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.02.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1808 of 2007 Sahayamary ... Petitioner vs.

State of Tamilnadu, Rep. by The Secretary to Govt., Prohibition and Excise Dept., Fort St. George, Chennai-9.

The District Collector & District Magistrate, Nagapattinam District, Nagapattinam. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus directing the respondents to produce the detenu Panneer @ Panneerselvam, son of Kulandaisamy, aged46 years before this Honourable Court now confined in central prison, Thiruchirapalli and set him at liberty and to call for the records pertaining to the order of detention passed in COC No. 68/2007 dated27.08.07 passed by the 2nd respondent and set aside the same. For Petitioner: Mr.T.MurugananthamFor Respondents: Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order of detention dated 12.12.2007, clamped on the detenuby name Panneer @ Panneerselvam, by the second respondent inC.O.C.No.68 of 2007, branding him as a Bootlegger under Section 3(1)of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, https://hcservices.ecourts.gov.in/hcservices/ Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil NaduAct 14 of 1982), is being challenged in this writ petition by the wife of the detenu.2. On 22.11.2007 at 14.30 hours, when the Inspector of Policeand his police party were on their routine raids, they found thedetenu selling illicit arrack and on seeing the police, the persons who gathered to consume the arrack escaped and when the detenuattempted to escape, he was arrested and the police secured the plastic can having 7 litres of arrack, which, when smelt, emanated poisonous odour resulting in irritation to eyes. A case was registered in Mayiladuthurai Prohibition Enforcement WingCr.No.1889/2007 under Section 4(1)(aaa), 4(1)(i) r/w 4(1-A) of the Tamil Nadu Prohibition Act and the detenu was sent to judicial custody. Sample of illicit was sent for chemical analysis and the Chemical Analyst has opined that the sample contained 4.1% mg. w/vper 100 ml. of atropine, which is poisonous.

The detaining authority, taking note of the above ground case as well as five adverse cases of similar nature, two on the file of Manalmedu Police Station Crime Nos.447/2006 and 558/2006 and three on the file of Mayiladuthurai Prohibition Enforcement Wing CrimeNos.1490/2007, 1491/2007 and 1803/2007 and having arrived at the subjective satisfaction that there is a compelling necessity to detain the detenu in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order and public health, ordered his detention dubbing him as a Bootlegger.

The learned counsel for the petitioner challenges the impugned order of detention only on the ground of non- consideration of the representation dated Nil made on behalf of the detenuobjecting to the order of detention.

Heard the learned Additional Public Prosecutor on the above point.

Admittedly, in the case on hand, objecting to the order of detention dated 12.12.2007, a representation dated Nil was made on behalf of the detenu and the same was received by the Government on23.1.2008. Remarks were called for from the detaining authority on24.1.2008 and since the remarks were not received, a reminder wassent on 1.2.2008. But, still a persual of the materials placed before us shows that the remarks were yet to be received by the Government from the detaining authority. This shows the laxity on the part of the detaining authority in responding to the communication sent by the Government. The learned Additional PublicProsecutor also is not in a position to substantiate that the representation was considered by the authorities concerned. Undersuch circumstances, as rightly pointed out by the learned counsel for the petitioner, we are constrained to hold that the representation https://hcservices.ecourts.gov.in/hcservices/ made on behalf of the detenu objecting to the order of detention was not at all considered by the Government, which has the effect of vitiating the order of detention.

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, 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.