K.Arumugham v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.9.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.670 of 2007K.Arumugham.. PetitionerVs1. State of Tamil Nadu rep. by Inspector of Police N-1, Royapuram Police Station Chennai 13.2. State of Tamil Nadu rep. by its Commissioner of Police Greater Chennai Egmore, Chennai 600 008.3. State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise Department Fort St. George, Chennai-600 009.4. The Superintendent Central Prison, Puzhal Chennai 600 066... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus calling for the records pertaining to theorder of detention passed by the second respondent in his proceedings MemoNo.91/BDFGISSV/2007 dated 14.3.2007 and quash the same thereby directingthe direct the respondents to produce the detenu, namely A.Selvakumar,S/o.K.Arumugam, confined at Central Prison II, Puzhal, Chennai 66 beforethis Court and set him at liberty.For Petitioner :Mr.J.NagarajanFor Respondents :Mr.P.KumaresanAddl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Made by P.D.DINAKARAN,J.)Aggrieved by the order of detention dated 14.3.2007 made inRef.No.91/2007 passed by the second respondent under the provisions of theTamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14of 1982) to detain one Selvakumar, son of Arumugam, branding him as aGoonda, the petitioner, father of the detenu, filed the above petitionseeking to quash the order of detention and to direct the respondents toproduce the detenu, who is now confined at Central Prison, Chennai beforethis Court and set him at liberty.2. On the basis of a complaint lodged by one Murugesan that on3.3.2007 at about 2.30 hours, the detenu along with one Mohan, threatenedhim at the knife point and forcibly took Rs.150/- from his pocket andRs.100/- from his lungi, causing injury on his right hand and hurled thebottles taken from the nearby shop in the road, which scattered all overthe roadside and made the public to run on all sides seeking shelterresulting in traffic dislocation, the detenu was arrested and a case wasregistered in Crime No.94/2007 on the file of N1, Royapuram PoliceStation, for the offence punishable under Sections 341, 336, 427, 392,397, 307 and 506(2), IPC.3. The second respondent, taking note of the above case as a groundcase and one adverse case, ordered his detention dubbing him as a goonda. 4. The learned counsel for the petitioner challenges the impugnedorder of detention dated 14.3.2007 mainly on the ground of delay inforwarding the remarks to the detaining authority. Hence, we do notpropose to go into the other aspects of the case.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 https://hcservices.ecourts.gov.in/hcservices/ (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 417.6. Coming to the the case on hand, admittedly, objecting to the orderof detention dated 14.3.2007, a representation was made on behalf of thedetenu on 3.4.2007, which was received by the Government on 4.4.2007.Remarks were called for from the detaining authority on 5.4.2007, whichwas received by the detaining authority on 9.4.2007. The detainingauthority, in turn, called for parawar remarks from the sponsoringauthority on 10.4.2007 and on receipt of the same on 13.4.2007, thedetaining authority sent it to the Government on 18.4.2007 after a delayof five days, which is not properly explained. Even taking note of theintervening holidays, viz., 14.4.2007 and 15.4.2007 (being Saturdayand Sunday), the delay of three days in forwarding the remarks, within theChennai City, is admittedly unexplained and inexcusable. The report wasreceived on 19.4.2007, Thereafter, the file was submitted on 19.4.2007and the same was considered by the Under Secretary and AdditionalSecretary on 19.4.2007 itself. The file was considered by the Minister on https://hcservices.ecourts.gov.in/hcservices/

21.4.2007. The rejection letter was prepared on 24.4.2007, sent to thedetenu on 25.4.2007 and served on 26.4.2007. 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, there is delay of three days, excludingintervening holidays on Saturday and Sunday, in sending the remarks tothe Government within the Chennai City, as referred to above, and thesame, in our considered opinion, vitiates the impugned order of detention.We are, therefore, inclined to allow this petition. In the result, the order of detention is set aside. The detenu isdirected to be set at liberty forthwith unless his presence is required inconnection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kpl https://hcservices.ecourts.gov.in/hcservices/ To1. The Inspector of Police N-1, Royapuram Police Station Chennai 13.2. The Commissioner of Police Greater Chennai Egmore, Chennai 600 008.3. The Secretary to Government Prohibition and Excise Department Fort St. George, Chennai-600 009.4. The Superintendent Central Prison, Puzhal Chennai 600 066.5. The Public Prosecutor High Court, Madras.+ 1 CC To Mr.J.Nagarajan, Advocate SR NO.59940HCP No.670 of 2007. gg[co]gp/10.10.