Selvi Dharani v. The 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.570 of 2007Selvi Dharani.. PetitionerVs1. The State of Tamil Nadu, rep. by its Secretary to Government, Prohibition & Excise Department, Fort St. George, Chennai 600009.2. The District Magistrate and the District Collector, Vellore District, Vellore... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein. For Petitioner:Mr.E.KannadasanFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order dated 3.4.2007, passed by the second respondent, dubbing one Rajini, wife of Ravi, as a bootlegger and directing herdetention under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), ischallenged in this writ petition by the mother of the detenu. https://hcservices.ecourts.gov.in/hcservices/

#2. The order of detention dated 3.4.2007 came to be passed basedon the ground case said to have taken place on 22.3.2007 at about13.00 hours, on the basis of the complaint lodged by one Gopalbefore the Sub Inspector of Police, Vellore Taluk Police Station. According to the complainant, he was consuming arrack daily. On21.3.2007, he went to Kennedy Palayam Kollaimedu for consumingarrack and he noticed one Rajini was selling arrack. He purchasedone glass of arrack from Rajini for a sum of Rs.10/- at 20.00 hours. While consuming, he felt more odour. When he enquired Rajini, shetold that it was a special arrack. On consuming arrack, he feltmore irritation in throat, dizziness and irritation in eyes and alsofelt giddiness. Suspecting that Rajini would have mixed some drugto give more booze and to prevent others from drinking the saidarrack, he lodged a complaint to take necessary action. A case wasregistered in Vellore Taluk Police Station in Crime No.122 of 2007under Section 4(1)i and 4(1-A)(ii) of the Tamil Nadu ProhibitionAct. On chemical analysis of the arrack seized, it was disclosedthat the sample contained 6.9mg% W/V of Atropine, which is apoisonous substance, which, in the opinion of the medical officer, would develop giddiness, vomiting, congestion of eye lids andrespiratory failure, and if not treated vigorously would result indeath due to Atropine poison. 3. The order of detention is also supported with seven adversecases against the detenu bearing Crime Nos.294/2004,58/2005,126/2005, 105/2006, 603/2006, 14/2007 and 73/2007 on thefile of the Vellore Taluk Police State for the offences punishableunder the Tamil Nadu Prohibition Act.4. Heard Mr.E.Kannadasan, learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor appearing forthe respondents.5. Since Mr.E.Kannadasan, 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 theother aspects, except to refer the delay in considering therepresentation as highlighted by the counsel for the petitioner.6.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.6.2. Article 22(5) of the Constitution of India suggests thatthe obligation of the government is to offer the detenu anopportunity of making a representation against the order, before itis confirmed according to the procedure laid down under the relevantprovisions of law, vide K.M. Abdulla Kunhi v. Union of India, (1991)1 SCC 476 . https://hcservices.ecourts.gov.in/hcservices/

6.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal by theState Government. Expedition is the rule and delay defeats mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre v. R.D. Tyagi, 1992 Supp (3) SCC 65.6.4. 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 650.6.5. It is a constitutional obligation of the Government toconsider the representation forwarded by the detenu without anydelay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on the representation, thewords “as soon as may be” in clause (5) of Article 22 convey themessage that the representation should be considered and disposed ofat the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in thedisposal of the representation. The court can certainly considerwhether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of anyindifference or lapse in considering the representation, such delaywill adversely affect further detention of the prisoner. In otherwords, it is for the authority concerned to explain the delay, ifany, in disposing of the representation. It is not enough to saythat the delay was very short. Even longer delay can as well beexplained. So the test is not the duration or range of delay, buthow it is explained by the authority concerned. Even the reasonthat the Minister was on tour and hence there was a delay of fivedays in disposing of the representation was rejected by the ApexCourt holding that when the liberty of a citizen guaranteed underArticle 21 of the Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient to justify thedelay, since the file could be reached the Minister with utmostpromptitude in cases involving the vitally important fundamentalright of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.7. In the case on hand, the impugned order of detention came tobe passed on 3.4.2007. A representation was made to the detainingauthority on 17.4.2007 and the detaining authority received the sameon 18.4.2007. The Government received the representation on25.4.2007 and parawar remarks were called for from the SponsoringAuthority on 25.4.2007 itself. Remarks were received from theSponsoring Authority on 27.4.2007. Report sent to the Government on29.4.2007, which was received on 8.5.2007. The Under Secretarydealt with the file on 8.5.2007 and the concerned Minister dealtwith the file on 9.5.2007. Even though the rejection letter wasprepared on 9.5.2007 and sent on 10.5.2007, the same was served on https://hcservices.ecourts.gov.in/hcservices/ the detenu only on 19.5.2007. The delay in serving the rejectionletter, viz., between 10.5.2007 and 19.5.2007 - a period of ninedays, was highlighted by the learned counsel for the petitioner. Even though 12.5.2007 and 13.5.2007 happened to be public holidays, there is no convincing reply on behalf of the State for the delay inserving the rejection order on the detenu. We find some force aswell as substance in this contention. We fail to understand as towhy the matter was delayed for seven days (excluding Saturday andSunday), between 10.5.2007 and 19.5.2007. There is absolutely noexplanation for this delay.8. 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 repeatedlyover 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 theSecretariat for various reasons including red-tapism, therepresentation 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 maintaininga consistent attitude of lethargy. So also, this Court willnot hesitate in quashing the order of detention to restorethe ‘liberty and freedom’ to the person whose detention isallowed to become bad by the Government itself on account ofhis representation not being disposed of at the earliest.” 9. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in consideringthe representation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperativeand it would render the continued detention impermissible andillegal, 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 ofthe Constitution of India and therefore, the petition mustsucceed and the same is ordered as prayed for. The detention order https://hcservices.ecourts.gov.in/hcservices/ dated 3.4.2007 is set aside. The detenue is directed to be set atliberty forthwith unless her custody is required in connection withany other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATRTo:1. The Secretary to Government, State of Tamil Nadu, Prohibition & Excise Department, Fort St. George, Chennai 600009.2. The District Magistrate and the District Collector, Vellore District, Vellore.3. The Superintendent, Special Prison for Vellore, Vellore.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.570 of 2007gk[co]gp/3.9.