Nithiyanandam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.8.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.402 of 2007Nithiyanandam.. PetitionerVs1. The State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise Department Fort St. George, Secretariat Chennai-600 009.2. The District Magistrate and District Collector Krishnagiri Krishnagiri District... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein calling for the recordsin Connection with the order of detention passed by the 2nd Respondentdated 6.1.2007 in his office Ref.No.S.C. 53/2006 against the petitioner'sbrother Senthil @ Senthil Kumar, S/o Marugesan, now confined in CentralPrison, Salem District and set aside the same and direct the respondentsto produce the above said detenue before this Court and set him at liberty.For Petitioner:Mr.E.KannadasanFor Respondents:Mr.Paul Noble DevakumarGovernment AdvocateORDER(Order of this Court was made by P.D.DINAKARAN,J.)The petitioner, who is the brother of the detenu, Senthil @Senthilkumar, son of Murugesan, who was incarcerated by order dated6.1.2007 of the second respondent under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) brandinghim as Goonda, has preferred this writ petition for issue of a Writ of https://hcservices.ecourts.gov.in/hcservices/ Habeas Corpus to call for the records in connection with the order ofdetention passed by the second respondent dated 6.1.2007 in his OfficeRef. No.S.C.53/2006 against the petitioner's brother, Senthil @Senthilkumar, son of Murugesan, now confined at Central Prison, Salem,Salem District, to set aside the same and to direct the respondents toproduce the above said detenu before this Court and set him at liberty.2. The order of detention dated 6.1.2007 came to be passed based onthe ground case said to have taken place on 10.12.2006 at about 9.00 a.m.,on the basis of the complaint lodged by one Mohan before the Sub Inspectorof Police, Kanthikuppam Police Station. According to the complainant, whowas running a beeda stall at Kuruvinaiyanapalli, on 10.12.2006 at about9.00 a.m., while he was engaged in business, two persons came to his shop,drank cool drinks and consumed cigarette and jartha. When the complainantasked the two persons to pay the amount towards the purchases made bythem, one among them threatened the complainant by taking a knife from thehip side and another person broke the glass bottles kept at his shop. Onseeing this the public waiting for bus ran helter shelter for theirsafety. Enquiry revealed that the persons were the detenu herein and oneSaravanan. The second respondent, taking note of this case as a groundcase and finding that there are 15 adverse cases pending against thedetenu for the offences punishable under Sections 379 and 394 IPC, havingsatisfied that there is a compelling necessity to detain him in order toprevent him from indulging in the activities which are prejudicial to themaintenance of public order, ordered his detention dubbing him as aGoonda. 3. Since Mr.E.Kannadasan, learned counsel for the petitionerchallenges the impugned order of detention dated 6.1.2007 mainly on theground of delay in considering the representation dated 15.2.2007 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 .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. https://hcservices.ecourts.gov.in/hcservices/

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 the orderof detention dated 6.1.2007, a representation was sent to the detainingauthority through the Advisory Board on 15.2.2007, which was received bythem on 19.2.2007, and remarks were called for on 19.2.2007 itself and thesame was received on 23.2.2007, after four days. Parawar remarks werecalled for from the Sponsoring Authority on 27.2.2007. It is astonishingto notice from the records that the Sponsoring Authority took time from27.2.2007 to 22.3.2007 (23 days) to submit its remarks to the Government,which is also not properly explained. Even taking note of the interveningpublic holidays, viz., 3.3.2007, 4.3.2007, 10.3.2007, 11.3.2007,17.3.2007 to 19.3.2007 (7 days), the delay of sixteen days in sending theremarks to the Government is admittedly unexplained and inexcusable. 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: https://hcservices.ecourts.gov.in/hcservices/ "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 sixteen 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 dated6.1.2007 is quashed. The detenu is directed to be set at libertyforthwith unless his presence is required in connection with any othercase.SasiSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To:1. The Secretary to Government State of Tamil Nadu Prohibition and Excise Department Fort St. George, Secretariat Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The District Magistrate and District Collector Krishnagiri Krishnagiri District.3. The Superintendent, Central Prison, Salem.4. The Joint Secretary to Govt, State of Tamilnadu, Public (Law & Order) Department, Fort St George, Chennai.5. The Public Prosecutor, High Court, Chennai.KK (co)sg 23/8/07H.C.P.No.402 of 200716.8.2007