K.Bhuvaneshwari v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.8.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.671 of 2007K.Bhuvaneshwari.. PetitionerVs1. State of Tamilnadu, rep. by its Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai-9.2. The District Collector and District Magistrate, Villupuram District... RespondentsPetition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.K.GandhikumarFor Respondents:Mr.N.R.ElangoAdditional Public Prosecutor-----O R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, who is the wife of the detenu, Selvam @ PattharSelvam, son of Nallamuthu, who was incarcerated by order dated25.4.2007 of the second respondent under Section 3(1) of the TamilNadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders,Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (TamilNadu Act 14 of 1982) branding him as a Bootlegger, has preferredthis writ petition for issue of a Writ of Habeas Corpus to call forthe records in connection with the order of detention passed by thesecond respondent dated 25.4.2007 in his OfficeRef.No.C2/18371/2007 against the petitioner's husband, Selvam @Patthar Selvam, son of Nallamuthu, now confined at Central Prison, https://hcservices.ecourts.gov.in/hcservices/ Cuddalore, to set aside the same and to direct the respondents toproduce the above said detenu before this Court and set him atliberty.2. The order of detention came to be passed by the secondrespondent on the basis of the ground case said to have taken placeon 12.4.2007 within the jurisdiction of the Inspector of Police,Villupuram Taluk Police Station. The detenu was found to be inpossession of one white coloured plastic can filled with 4 Litresof arrack, and was selling the same. A case was registered in CrimeNo.358 of 2007 on the file of Villupuram Taluk Police Station underSection 4(1)(i) and 4(1-A) of the Tamil Nadu Prohibition Act. Onchemical analysis of the arrack seized, it was disclosed that thesamples contained 2.89mg% W/V of Atropine, which is a poisonoussubstance, which, in the opinion of the medical officer, woulddevelop giddiness, vomiting, congestion of eye lids and respiratoryfailure, and if not treated vigorously would result in death due toAtropine poison. 3. The second respondent, taking note of this case as a groundcase and finding that there are four adverse cases pending againstthe detenu for the offences punishable under Sections 4(1)(A)(aaa),4(1)(i) and 4(1-A) of the Tamil Nadu Prohibition Act, and havingsatisfied that there is a compelling necessity to detain thedetenu in order to prevent him from indulging in the activitieswhich are prejudicial to the maintenance of public order and publichealth, ordered him detention dubbing him as a Bootlegger. 4. Since Mr.K.Gandhikumar, 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.5.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.5.2. 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 therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476.5.3. 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 Sukrya https://hcservices.ecourts.gov.in/hcservices/ 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 321and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.5. 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,the words “as soon as may be” in clause (5) of Article 22 conveythe message that the representation should be considered anddisposed of at the earliest. But that does not mean that theauthority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The court cancertainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering therepresentation, such delay will adversely affect further detentionof the prisoner. In other words, it is for the authority concernedto explain the delay, if any, in disposing of the representation.It is not enough to say that the delay was very short. Even longerdelay can as well be explained. So the test is not the duration orrange of delay, but how it is explained by the authority concerned.Even the reason that the Minister was on tour and hence there was adelay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizenguaranteed under Article 21 of the Constitution of India isinvolved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reachedthe Minister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, a representationwas made on behalf of the detenu to the Government on 3.4.2007.The Government received the same only on 9.5.2007. Even thoughthe representation was received by the detaining authority on9.5.2007 itself, parawar remarks were called for from thesponsoring authority only on 25.5.2007. Ultimately, therepresentation was rejected by the Government on 31.5.2007 and thesame was served on the detenu on 5.6.2007. The delay in callingfor the parawar remarks by the detaining authority from thesponsoring authority, viz., between 9.5.2007 and 25.5.2007 - aperiod of sixteen days, was highlighted by the learned counsel forthe petitioner. Even though 12.5.2007, 13.5.2007, 19.5.2007 and20.5.2007 happened to be public holidays, there is no convincing https://hcservices.ecourts.gov.in/hcservices/ reply on behalf of the State for the delay in considering therepresentation. We find some force as well as substance in thiscontention. We fail to understand as to why the matter was delayedfor twelve days (excluding Saturday and Sunday), between 9.5.2007and 25.5.2007. There is absolutely no explanation for this delay.7. 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, theState Government and its officers continue to behave intheir old, lethargic fashion and like all other filesrusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprived ofhis liberty, continue to be dealt with in the same fashion.The Government and its officers will not give up their habitof maintaining a consistent attitude of lethargy. So also,this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by the Governmentitself on account of his representation not being disposedof at the earliest.” 8. 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 SCC476 .9. In the instant case, there is delay of twelve days inconsidering the representation, as referred to above, and thesame, in our considered opinion, vitiates the impugned order ofdetention. We are, therefore, inclined to allow this petition.The order of detention dated 25.4.2007 is quashed. The detenu isdirected to be set at liberty forthwith unless his presence isrequired in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ATRTo:1. The Secretary to Government, State of Tamilnadu, Prohibition and Excise Department, Fort St. George, Chennai-9.2. The District Collector and District Magistrate, Villupuram District.3. The Superintendent, Central Prison, Cuddalore.4. The Public Prosecutor, High Court, Madras.5.The Joint Secretary to GovernmentPublic (Law and Order)Fort St.George, Chennai -9.PV (CO)km/10.9.H.C.P.No.671 of 2007