Sudha v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.8.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.568 of 2007Sudha.. PetitionerVs1. State of Tamil Nadu, rep. by the Secretary, Prohibition & Excise Department, Fort St. George, Chennai 600009.2. The District Magistrate and the District Collector, Villupuram District... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.S.Vadivel MuruganFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order dated 30.3.2007, passed by the second respondent, dubbingone Sengalvarayan, son of Adhikesavan, as bootlegger and directing hisdetention 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), is challenged in this writpetition by the wife of the detenu. 2. The order of detention came to be passed by the second respondenton the basis of the ground case said to have taken place on 7.3.2007within the jurisdiction of the Inspector of Police, KallakurichiProhibition Enforcement. The detenu was found to be in possession of onewhite coloured plastic can filled with 5 Litres of poisonous arrack andtwo lorry tubes each containing 55 Litres of poisonous arrack, and was https://hcservices.ecourts.gov.in/hcservices/ selling the same. A case was registered in Kallakurichi ProhibitionEnforcement Wing in Crime No.291 of 2007 under Section 4(1-A), 4(1)(aaa)and 4(1)(i) of the Tamil Nadu Prohibition Act. On chemical analysis of thearrack seized, it was disclosed that the samples contained 3.47, 3.47,3.47mg% W/V of Atropine respectively, which is a poisonous substance,which, in the opinion of the medical officer, would develop giddiness,vomiting, congestion of eye lids and respiratory failure, and if nottreated vigorously would result in death due to Atropine poison. Theorder of detention is also supported with three adverse cases against thedetenu bearing Crime Nos.673/2007, 142/2007 and 241/2007 on the file ofthe Kallakurichi Prohibition Enforcement Wing for the offences punishableunder the Tamil Nadu Prohibition Act.3. Heard Mr.S.Vadivel Murugan, learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor appearing for therespondents.4. Since Mr.S.Vadivel Murugan, learned counsel for the petitionerwants to restrict his submission only on the ground of delay inconsidering the representation, we do not propose to go into the otheraspects, except to refer the delay in considering the representation ashighlighted by the counsel for the petitioner.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 that https://hcservices.ecourts.gov.in/hcservices/ the 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 417.6. In the case on hand, the impugned order of detention came to bepassed on 30.3.2007. A representation was made to the detaining authorityon 11.4.2007 and the detaining authority received the same on 18.4.2007.The Government received the representation on 26.4.2007 and parawarremarks were called for from the Sponsoring Authority on 26.4.2007 itself.Remarks were received from the Sponsoring Authority only on 3.5.2007. Thedelay in receiving the remarks by the Sponsoring Authority, viz., between26.4.2007 and 3.5.2007 - a period of seven days, was highlighted by thelearned counsel for the petitioner. Even though 28.4.2007, 29.4.2007 and1.5.2007 happened to be public holidays, there is no convincing reply onbehalf of the State for the delay in submitting the remarks by theSponsoring Authority. We find some force as well as substance in thiscontention. We fail to understand as to why the matter was delayed forfour days (excluding Saturday and Sunday), between 26.4.2007 and 3.5.2007.There is absolutely no explanation for this delay.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.” https://hcservices.ecourts.gov.in/hcservices/

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 .We are of the considered opinion that the delay which standsunexplained would fatalise the detention attracting Article 22 of theConstitution of India and therefore, the petition must succeed and thesame is ordered as prayed for. The detention order dated 30.3.2007 is setaside. The detenu is directed to be set at liberty forthwith unless hiscustody is required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarATRTo:1. The Secretary, State of Tamil Nadu, Prohibition & Excise Department, Fort St. George, Chennai 600009.2. The District Magistrate and the District Collector, Villupuram District.3. The Superintendent, Central Prison, Cuddalore.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government,Public (Law and Order) Fort St.George, Chennai – 9. H.C.P.No.568 of 2007 SSK(CO)RVL 03.09.2007