Jothilakshmi v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.8.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.302 of 2007Jothilakshmi.. PetitionerVs1. The State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise Department Fort St. George Chennai-600 009.2. The District Collector and District Magistrate Tiruvallur District Tiruvallur... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.call for the entirerecords leading to the detention of the petitioner husband by nameVendatesan son of Devaraj under Act 14/82 ride detention order dated17.2.2007 on the file of the 2nd respondent herein made in the proceedingsB.DFGISSV 2/07 quash the same and consequently direct the respondentsherein to procedure the body and person of the said detenu before thiscourt.For Petitioner:Ms.R.Subadra DeviFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The petitioner, who is the wife of the detenu, Venkatesan, son ofDevaraj, who was incarcerated by order dated 17.2.2007 of the secondrespondent under Section 3(1) of the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Offenders, Goondas,Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and VideoPirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as Goonda, has https://hcservices.ecourts.gov.in/hcservices/ preferred this writ petition for issue of a Writ of Habeas Corpus to callfor the entire records leading to the detention of her husband under TamilNadu Act 14 of 1982 vide detention order dated 17.2.2007 on the file ofthe second respondent in the proceedings B.D.F.G.I.S.S.V.No.2/2007, toquash the same and to direct the respondents to produce the body andperson of the detenu and set him at liberty.2.1. The order of detention dated 17.2.2007 came to be passed basedon the ground case said to have taken place on 1.2.2007 at about 7 p.m.,complaint against which was lodged by one V.Karnan. It is alleged thatwhile Karnan was selling guava and other fruits in a push cart, the detenucame there and demanded mamool and when the complainant questioned "Why Ishould give mamool?" and "Why, often you are demanding mamool?", thedetenu turned down the push cart, resulting in rolling down, scatteringand damage of the fruits. The detenu then took two soda bottles in thenearby petty shop and put one bottle and broke it with other and on seeingthis the people surrounding scattered in fear and panic. The detenu alsotried to stab the complainant with a pen knife, however the complainantprevented the detenu from doing so and during the course he sustainedinjuries on his left hand and blood poured out. Based on the saidcomplaint, the Sub Inspector of Police registered a case in GummidipoondiPolice Station in Crime No.21 of 2007 under Sections 341, 294(b), 427 and307 IPC for investigation, apprehended the detenu and now the detenu is inremand in Central Prison, Puzhal.2.2. The second respondent, taking note of the above case as a groundcase and finding that there are 6 adverse cases pending against the detenufor various offences punishable under Sections 302, 323, 324, 380, 457,506 (ii) and 511 IPC, having satisfied that there is a compellingnecessity to detain him in order to prevent him from indulging in theactivities which are prejudicial to the maintenance of public order,ordered his detention dubbing him as a Goonda. 3. Since Mrs.R.Subadra Devi, learned counsel for the petitionerchallenges the impugned order of detention dated 17.2.2007 mainly on theground of delay in considering the representation dated 27.2.2007 made onbehalf of the detenu, we do not propose to go into the other aspects ofthe case.4.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.4.2. 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 of law,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 . https://hcservices.ecourts.gov.in/hcservices/

4.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal by the StateGovernment. 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 65.4.4. 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 650.4.5. It is a constitutional obligation of the Government to considerthe representation forwarded by the detenu without any delay. Though noperiod is prescribed by Article 22 of the Constitution for the decision tobe taken on the representation, the words “as soon as may be” in clause(5) of Article 22 convey the message that the representation should beconsidered and disposed of at the earliest. But that does not mean thatthe authority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The court can certainlyconsider whether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of any indifference orlapse in considering the representation, such delay will adversely affectfurther detention of the prisoner. In other words, it is for the authorityconcerned to explain the delay, if any, in disposing of therepresentation. 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 theduration or range of delay, but how it is explained by the authorityconcerned. Even the reason that the Minister was on tour and hence therewas a delay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizen guaranteedunder Article 21 of the Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitude incases involving the vitally important fundamental right of a citizen, videRajammal v. State of T.N., (1999) 1 SCC 417.5. Coming to the the case on hand, admittedly, on receipt of theorder of detention dated 17.2.2007, a representation was sent to thedetaining authority on 27.2.2007, which was received by them on 28.2.2007,and remarks were called for on 1.3.2007 and the same was received on2.3.2007. Parawar remarks were called for from the Sponsoring Authorityon 2.3.2007 itself. However, the records show that the SponsoringAuthority took time from 2.3.2007 to 9.3.2007 (7 days) to submit itsremarks to the Government, which is not properly explained. Even takingnote of the intervening public holidays, viz., 3.3.2007 and4.3.2007 (2 days), the delay of five days in sending the remarks to theGovernment is admittedly unexplained and inexcusable. https://hcservices.ecourts.gov.in/hcservices/

6. At this juncture, a reference to the decision of the Apex Court inKundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3 SCC194 is apposite:"In spite of law laid down above by this Court repeatedly over thepast three decades, the Executive, namely, the State Government andits officers continue to behave in their old, lethargic fashion andlike all other files rusting in the Secretariat for various reasonsincluding red-tapism, the representation made by a person deprivedof his liberty, continue to be dealt with in the same fashion. TheGovernment and its officers will not give up their habit ofmaintaining a consistent attitude of lethargy. So also, this Courtwill not hesitate in quashing the order of detention to restore the‘liberty and freedom’ to the person whose detention is allowed tobecome bad by the Government itself on account of hisrepresentation not being disposed of at the earliest.” 7. 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 render thecontinued detention impermissible and illegal, vide K.M. Abdulla Kunhi v.Union of India, (1991) 1 SCC 476 .8. In the instant case, there is delay of five days in consideringthe representation, as referred to above, and the same, in ourconsidered opinion, vitiates the impugned order of detention. We are,therefore, inclined to allow this petition. The order of detention dated17.2.2007 is quashed. The detenu is directed to be set at libertyforthwith unless his presence is required in connection with any othercase.sd/-Asst.Registrar/true copy/Sub Asst.Registrarsasi https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government State of Tamil Nadu Prohibition and Excise Department Fort St. George, Secretariat Chennai-600 009.2. The District Collector and District Magistrate Tiruvallur District Tiruvallur.3. The Superintendent of Prison, Central Prison, Puzhal, Chennai.4. The Public Prosecutor, High court Madras.5. The Joint Secretary to Govt., (Law & Order) Fort St.George, Chennai.9.+ 1 cc to Mr.R.Subadradevi Advocate SR.NO.52105SSV(CO)RD 30.8.07H.C.P.No.302 of 2007