Ravi @ Ravichandran @Ravikumar @ Naina Ravi v. The Secretary to Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.9.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.480 of 2007Ravi @ Ravichandran @Ravikumar @ Naina Ravi.. PetitionerVs1. The Secretary to Government, Home, Prohibition & Excise Department, Government of Tamilnadu, Fort St. George, Chennai 600009.2. The District Magistrate and District Collector, Virudhunagar District, Virudhunagar. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.M.K.SubramanianFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The petitioner, Ravi @ Ravichandran @ Ravikumar @ Naina Ravi, son ofBalakrishnan, who is the detenu, who was incarcerated by order dated5.3.2007 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 a Goonda, has preferred this writ petition for issue of a Writ ofHabeas Corpus to call for the records in connection with the order of https://hcservices.ecourts.gov.in/hcservices/ detention passed by the second respondent dated 5.3.2007 inCr.M.P.No.6/2007/Goonda against the petitioner, now confined at CentralPrison, Madurai, 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 5.3.2007 came to be passed based onthe ground case said to have taken place on 31.1.2007 at about 11.00hours, on the basis of the complaint lodged by one Sankar before theInspector of Police, Krishnankovil Police Station. According to thecomplainant, while he was walking near Ambedkar statue in SundarapandianBazar, the detenu along with one Vairam @ Vairamuthu came in a motor cycleand demanded money. When the complainant refused, both of them forciblytook away a sum of Rs.210/- from his shirt packet by threatening him.When the complainant asked to return the money, the person accompanied thedetenu attempted to cut his head with a long knife by uttering filthywords. The complainant escaped from the cut by bending his body. Thedetenu also threatened the complainant and the general public, who werewaiting for bus, by brandishing a long knife. They also picked up sodabottles from the nearby shops and thrown on the road side. The bottlesfell on the road and scattered all over the road. The public apprehendingdanger to their lives ran for safety, shop vendors closed the shops andthe entire traffic came to standstill causing insecurity in the minds ofthe public. Both of them decamped from the scene of occurrence. In thisregard, a case was registered in Crime No.38 of 2007 on the file ofKrishnankovil Police Station under Sections 341, 294(b), 397, 506(ii), 427and 307 IPC. 3. The second respondent, taking note of this case as a ground caseand finding that there are two adverse cases pending against the detenu inCrime No.240 of 2006 on the file of Rajapalayam North Police Station forthe offence under Section 307 IPC and Crime No.121 of 2007 on the file ofSrivilliputtur Town Police Station for the offences punishable underSections 147, 148, 307, 302 and 109 IPC, and having satisfied that thereis a compelling necessity to detain him in order to prevent him fromindulging in the activities which are prejudicial to the maintenance ofpublic order, ordered his detention dubbing him as a Goonda. 4. The learned counsel for the petitioner challenges the impugnedorder of detention dated 3.5.2007 on two grounds viz., (i) delay inconsidering the representation made on behalf of the detenu, dated12.4.2007; and (ii) even though in the grounds of detention, it ismentioned that both the accused were produced before the Court of JudicialMagistrate No.III, Srivilliputtur on 1.2.2007 and lodged in CentralPrison, Madurai, to judicial custody upto 16.2.2007, no supportingmaterial viz., the remand order passed by the Judicial Magistrate, hasbeen furnished to the detenu. According to the learned counsel, in viewof the non supply of the essential document viz., remand report, thedetenu was not in a position to make an effective representation and hencethe order of detention vitiates. In support of his contention, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the petitioner relied upon the decision of the ApexCourt in POWNAMMAL v. STATE OF TAMIL NADU AND ANOTHER [A.I.R. 1999 SC618]. 5.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.5.2. 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 476.5.3. 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 65.5.4. 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 321 andRaghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.5. 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. https://hcservices.ecourts.gov.in/hcservices/

6.1. Coming to the case on hand, admittedly, objecting to the order ofdetention dated 5.3.2007, a representation was made on behalf of thedetenu on 12.4.2007, which was received by the Government on 13.4.2007.Remarks were called for from the detaining authority on 16.4.2007, whichwas received by the detaining authority on 21.4.2007. The detainingauthority, in turn, called for parawar remarks from the sponsoringauthority on 23.4.2007. The remarks of the sponsoring authority wasreceived on 24.4.2007. The detaining authority sent the remarks to theGovernment on 25.4.2007 and the same was received on 26.4.2007.Thereafter, the file was submitted only on 3.5.2007, after a delay of 7days, and the same was considered by the Under Secretary on 3.5.2007itself and Additional Secretary on 4.5.2007. The file was considered bythe Minister on 4.5.2007 itself. The rejection letter was prepared on4.5.2007. However, the same was sent to the detenu on 9.5.2007 and servedon him on 14.5.2007. 6.2. The delay of four days (excluding Saturday and Sunday) on thepart of the Government in submitting the file before the Under Secretary,which has not been properly explained, cannot be excused.7. 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.” 8. 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 476.9. In the instant case, admittedly, there is delay of four days insubmitting the file before the Under Secretary as referred to above,which vitiates the impugned detention order. https://hcservices.ecourts.gov.in/hcservices/

10. As far as the second ground viz., non-supply of remand orderrelied on in the grounds of detention, is concerned, it is apt to referthe decision of the Supreme Court in POWNAMMAL v. STATE OF TAMIL NADU,cited supra, where the Tamil version of the remand order, which is arelied upon document, was not supplied to the detenu even though it wasdemanded by the detenu, the Apex Court held thus -" 15. Adverting to the facts of this case, the appellant hasmade a representation for supply of Tamil version of the copy oforder of remand and specifically stated that the detenue couldnot understand English language. Admittedly, Tamil version oforder of remand was not furnished to her. A perusal of thegrounds shows that the order of remand was relied upon by thesecond respondent to reach subjective satisfaction, so thedetenue need not show that any prejudice was caused to her dueto non-supply of the Tamil version of order of remand.Therefore, the High Court is not correct in holding that non-furnishing of the copy of the order of remand would not in anyway prejudice the detenue."11. In view of the decision of the Apex Court cited supra, we findsome force in the argument of the learned counsel for the petitioner thatthe detenu was prejudiced by non-supply of the remand order, as he hadbeen deprived of his opportunity to make an effective representation andhence, the impugned order of detention vitiates on this ground also.In the result, the order of detention dated 5.3.2007 is set aside.The detenu Ravi @ Ravichandran @ Ravikumar @ Naina Ravi is directed to beset at liberty forthwith unless his presence is required in connectionwith any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATR https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government, Home, Prohibition & Excise Department, Government of Tamilnadu, Fort St. George, Chennai 600009.2. The District Magistrate and District Collector, Virudhunagar District, Virudhunagar.3. The Superintendent, Central Prison, Madurai.4. The Public Prosecutor,High Court, Madras.5. The Joint Secretary, Government of Tamil Nadu,Public [Law & Order], Fort St. George, Chennai 600 009.H.C.P.No.480 of 2007mdr[co]gp/18.9.