Nagarani 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.684 of 2007Nagarani.. PetitionerVs1. State of Tamilnadu, rep. by its Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai-9.2. The Commissioner of Police, Greater Chennai, Egmore, Chennai-8... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.S.Swamidoss ManokaranFor Respondents:Mr.N.R.ElangoAdditional Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, who is daughter of detenu, Sulochana @ AruppuSulochana, wife of Vasudevan, who was incarcerated by order dated31.3.2007 of the second respondent under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) brandingher as a Bootlegger, has preferred this writ petition for issue of a Writof Habeas Corpus to call for the records in connection with the order ofdetention passed by the second respondent dated 31.3.2007 in his MemoNo.134/BDFGISSV/2007 against the petitioner's mother, Sulochana @ AruppuSulochana, wife of Vasudevan, now confined at Special Prison for Women,Puzhal, Chennai, to set aside the same and to direct the respondents toproduce the above said detenu before this Court and set her at liberty. https://hcservices.ecourts.gov.in/hcservices/

2. On 16.3.2007, the Inspector of Police, Prohibition EnforcementWing, Madhavaram Unit, along with police party, while conductingprohibition raid at Mathur, found a woman, the detenue herein, possessinga plastic gunny bag and by receiving money giving something from thegunny bag to the persons standing in front of her. On seeing the policepeople, the said woman tried to escape from that place, but she got caughtby the police. It was found that the gunny bag contained 488 numbers of50 ml duplicate Karanataka arrack sachets. The detenue was arrested at14.15 hours and a case was registered in Crime No.26 of 2007 on the fileof PEW Madhavaram Unit under Sections 4(1)(i), 4(1)(aaa) r/w 4(1-A) of theTamil Nadu Prohibition Act. Samples of arrack were taken and were sentfor chemical analysis, which disclosed that the arrack was mixed withatropine of more than 8.3% mg, which would be injurious and also fatal, ifit not treated vigorously. 3. The second respondent, taking note of this case as a ground caseand finding that there are three adverse cases pending against the detenuefor the offences punishable under Sections 4(1)(A)(aaa), 4(1)(i) and 4(1-A) of the Tamil Nadu Prohibition Act, and having satisfied that there is acompelling necessity to detain the detenu in order to prevent her fromindulging in the activities which are prejudicial to the maintenance ofpublic order and public health, ordered her detention dubbing her as aBootlegger. 4. Since Mr.S.Swamidoss Manokaran, 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. https://hcservices.ecourts.gov.in/hcservices/

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. In the case on hand, the impugned order of detention came to bepassed on 31.3.2007. A representation was made to the detaining authorityon 7.5.2007. The Government received the same on 7.5.2007 and thedetaining authority received the same on 10.5.2007. Parawar remarks werecalled for from the Sponsoring Authority on 11.5.2007. Remarks werereceived from the Sponsoring Authority on 14.5.2007. Report sent to theGovernment on 14.5.2007 itself. The Under Secretary dealt with the fileon 16.5.2007 and the concerned Minister dealt with the file on 17.5.2007.Ultimately, the representation was rejected by the Government on18.5.2007. Even though the rejection letter was prepared on 18.5.2007 andthe same was sent to the detenu on 18.5.2007 itself, it was served on thedetenue only on 23.5.2007. The delay in serving the rejection letter onthe detenue, viz., between 18.5.2007 and 23.5.2007 - a period of fivedays, was highlighted by the learned counsel for the petitioner. Even https://hcservices.ecourts.gov.in/hcservices/ though 19.5.2007 and 20.5.2007 happened to be public holidays, there is noconvincing 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 delayed forthree days (excluding Saturday and Sunday), between 18.5.2007 and23.5.2007. 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.” 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 in consideringthe representation, as referred to above, and the same, in our consideredopinion, vitiates the impugned order of detention. We are, therefore,inclined to allow this petition. The order of detention dated 31.3.2007is quashed. The detenue is directed to be set at liberty forthwith unlessher presence is required in connection with any other case.ATRSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government, State of Tamilnadu, Prohibition and Excise Department, Fort St. George, Chennai-9.2. The Commissioner of Police, Greater Chennai, Egmore, Chennai-8.3. The Superintendent, Special Prison for Women, Puzhal, Chennai.4. The Public Prosecutor, High Court, Madras.5.THE JOINT SECRETARY TO GOVT OF TAMILNADU, PUBLIC (LAW AND ORDER) DEPARTMENT,FORT ST GEORGE,CHENNAI-9.JRG (co)sg 10/9/07H.C.P.No.684 of 200729.8.2007