Lakshmi v. The Secretary to Government Prohibition and Excise Department Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.8.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.608 of 2007Lakshmi.. PetitionerVs1. The Secretary to Government Prohibition and Excise Department Government of Tamil Nadu Fort St. George, Chennai-600 009.2. The Commissioner of Police Egmore, Chennai – 600 008... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.A.K.S.ThahirFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The petitioner, who is the sister of the detenu, Desingu alias Desi,son of Natarajan, who was incarcerated by order dated 17.3.2007 of thesecond respondent under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him asGoonda, has preferred this writ petition for issue of a Writ of HabeasCorpus to call for the records relating to the detention orderNo.101/BDFGISSV/2007, dated 17.3.2007 passed by the second respondent, toset aside the same and to direct the respondents to produce the detenu nowconfined in Central Prison, Puzhal, Chennai before this Court and to sethim at liberty. https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 17.3.2007 came to be passed basedon the ground case said to have taken place on 23.2.2007 at about 7.30a.m. When four Head Constables attached to N4 Fishing Harbour PoliceStation were on special duty to secure the detenu and one Chakkarai aliasChakkarapani and John alias Aruppu John, who were absconding accused inCrime No.14 of 2007, and notice all the three accused and rushed toapprehend them, the detenu took a knife from his back and rushed to cutHead Constable Pannirselvam over his neck. The accused rushed to thenearby bunk shop and picked up soda bottles, hurled the same against thepolice personnel. The bottles fell on the road and broken into pieces.The public who were at the spot noticing the atrocious activities ran forsafer places apprehending danger to their lives. The normal traffic inthat area was totally dislocated. The Head Constable Pannirselvam lodgeda special report and the Inspector of Police, Law and Order, N4 FishingHarbour Police Station registered a case in Crime No.15 of 2007 underSection 332, 336, 427, 307 and 506 (2) IPC. On 23.2.2007, the detenusurrendered on 23.2.2007 and was remanded to judicial custody by theJudicial Magistrate-II, Poonamallee.2.2. The second respondent, taking note of the above case as a groundcase and finding that there are two adverse cases pending against thedetenu for various offences punishable under Sections 384, 506(2), 120(b),147, 148, 341, 324, 326, 302, and 506 (2) IPC, having satisfied that thedetenu is habitually commiting crime and acted in a manner prejudicial tothe maintenance of public order, ordered his detention dubbing him as aGoonda. 3. Since Mr.A.K.S.Thahir, learned counsel for the petitionerchallenges the impugned order of detention dated 17.3.2007 mainly on theground of delay in considering the representation dated 21.4.2007 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 17.3.2007, a representation was sent to thedetaining authority on 21.4.2007, which was received by them on 24.4.2007,and remarks were called for on 25.4.2007 and the same was received at theCollectorate on 27.4.2007. Parawar remarks were called for from theSponsoring Authority on 30.4.2007, the same were received on the same dateand a report was sent to the Government on 1.5.20047 and the same wasreceived on 2.5.2007. The Under Secretary and the Additional Secretaryto the Government dealt with the file on 4.5.2007 and the Minister (PW &Law) dealt with the file on 5.5.2007 and rejection letter was prepared on7.5.2007. However, the records show that the rejection letter was sent to https://hcservices.ecourts.gov.in/hcservices/ the detenu only on 11.5.2007 (four days). The delay of four days insending the rejection letter prepared that too to a detenu, who is withinthe Chennai territory, viz., in Central Prison, Puzhal, Chennai isadmittedly 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:"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 four days in sending therejection letter to the detenu, 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 dated17.3.2007 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 https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary Prohibition and Excise Department Government of Tamil Nadu Fort St. George, Chennai-600 009.2. The Commissioner of Police Egmore, Chennai – 600 008.3. The Superintendent, Central Prison, Chennai.4. The Joint Secretary to Government, Public (Law & Order) Fort Saint George, Chennai-9.5. The Public Prosecutor, High Court, Madras-104.+1 cc to Mr.A.K.S.Thahir, Advocate Sr.No.54283.NSM(CO)dcp/7.9H.C.P.No.608 of 2007