CORAMTHE HONOURABLE MR v. The Secretary to Government of Tamil Nadu Prohibition and Excise Department Fort

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.9.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.756 of 2007Ramesh alias Karunakaran.. Petitioner/DetenueVs.1. The Secretary to Government of Tamil Nadu Prohibition and Excise Department Fort St.George, Chennai-9.2. The District Collector and District Magistrate Villupuram District Villupuram... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue Habeas Corpus Calling for the records of thedetention order made in C-2/9104/2007 dated 01.03.2007 passed bythe District Collector and District Magistrate, VillupuramDistrict Villupuram the Second Respondent herein and set asidethe same and direct the respondents to produce the detenu Ramesh@ Karunakaran, S/o. Raman, now confined in Central Prison,Cuddalore before this Honble Court and set the detenu Ramesh @Karunakaran at liberty.For Petitioner : Mr.R.BalakrishnanFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detentionas against the petitioner, as the said authority arrived at thesubjective satisfaction that the said detenu is a Goonda and he https://hcservices.ecourts.gov.in/hcservices/ has to be detained under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Officers, Goondas, Immoral Traffic Offenders,Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (TamilNadu Act 14 of 1982).2. The order of detention dated 1.3.2007 was passed on thebasis of ground case in Crime No.57 of 2007 for allegedcommission of offences under Sections 392 read with 397 of theIndian Penal Code. The allegation against the detenu was that on12.2.2007 at about 7.00 p.m., when one Ramesh was driving his carbearing registration No.TN-67-8242 from Kachirapalayam toThiyagadurgam, near sugar factory at Kallakurichi Road, thedetenu and his associates waylaid the car, brandished knives atRamesh, pulled him out of the car and the detenu put a knife onthe neck of Ramesh and demanded as to what he had possessed inhis pocket. One of the associates of the detenu threatened tokill him and snatched Nokia mobile from his shirt pocket andanother associate snatched Rs.1200/- from his pant pocket. Thesaid Ramesh started shouting and on hearing the same the nearbypeople came to spot. At that time the one of the associates ofdetenu instructed the detenu to kill if anybody comes near tocatch him. All of them brandished knives so saying that theentire people of Salem District are afraid of them and that ifanybody dared to come and catch them, they would kill them. Theshop keepers downed the shutters out of fear. The vehiculartraffic came to a standstill. The detenu and his associatesescaped. On the complaint of the said Ramesh, the crime wasregistered at Kachirapalayam Police Station. That apart, thedetaining authority also took note of the adverse case pendingagainst the detenu in Crime No.78 of 2007 on the file ofChinnasalem Police Station for the offence punishable underSection 392 of the Indian Penal Code. Considering theseactivities of the detenu are prejudicial to maintenance of publicorder, the detaining authority passed the impugned order. Thedetenu was declared as an “Goonda" and was kept in custody atCentral Prison, Cuddalore. 3. Challenging the said detention, the petitioner has filedthe present Habeas Corpus Petition seeking a writ of habeascorpus to call for the records of the detention order made inC.2/9104/2007, dated 1.3.2007 passed by the second respondent, toset aside the same and to direct the respondents to set him atliberty.4. Heard Mr.R.Balakrishnan, learned counsel for thepetitioner and Mr.N.R.Elango, learned Additional PublicProsecutor for the respondents. https://hcservices.ecourts.gov.in/hcservices/

5. The only contention advanced by the learned counsel forthe petitioner is that there is considerable delay in consideringthe representation dated 15.5.2007 and the same has rendered thedetention illegal.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 suggeststhat the obligation of the government is to offer the detenu anopportunity of making a representation against the order, beforeit is confirmed according to the procedure laid down under therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 .6.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal bythe State Government. Expedition is the rule and delay defeatsmandate of Article 22(5) of the Constitution of India, vide RamSukrya Mhatre 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 thedetention illegal, vide Tara Chand v. State of Rajasthan, (1980)2 SCC 321 and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1SCC 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,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 wouldhave occasioned in the disposal of the representation. The courtcan certainly 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 furtherdetention of the prisoner. In other words, it is for theauthority concerned to explain the delay, if any, in disposing ofthe representation. It is not enough to say that the delay wasvery short. Even longer delay can as well be explained. So thetest is not the duration or range of delay, but how it isexplained by the authority concerned. Even the reason that theMinister was on tour and hence there was a delay of five days in https://hcservices.ecourts.gov.in/hcservices/ disposing of the representation was rejected by the Apex Courtholding that when the liberty of a citizen guaranteed underArticle 21 of the Constitution of India is involved, the absenceof the 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 SCC417.7. In the instant case, the impugned order of detention cameto be passed on 1.3.2007. A representation was made to thedetaining authority on 18.5.2007. The detaining authorityreceived the same on 22.5.2007 and remarks were called for on23.5.2007. The representation was received from the GovernmentCentral Prison by the Collectorate on 28.5.2007. After obtainingthe remarks of the Sponsoring Authority the report was sent tothe Government and the file was considered by the Under Secretaryand the Additional Secretary on 12.6.2007. However, the Hon'bleMinister (PWD and Law) dealt with the file on 21.6.2007, viz.,after 9 days. Even though 16.6.2007 and 17.6.2007 happen to bepublic holidays, still a delay of 7 days exists. This delay washighlighted by the learned counsel for the petitioner. There isno convincing reply on behalf of the State for the said delay. Wefind some force as well as substance in this contention. We failto understand as to why the matter was delayed for seven days,between 12.6.2007 and 21.6.2007. 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, 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 deprivedof his liberty, continue to be dealt with in the samefashion. The Government and its officers will not give uptheir habit of maintaining a consistent attitude oflethargy. So also, this Court will not hesitate inquashing the order of detention to restore the ‘libertyand 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.” https://hcservices.ecourts.gov.in/hcservices/

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 SCC476 .The towering delay of seven days which stands unexplainedwould fatalise the detention attracting Article 22 of theConstitution of India and therefore, the petition mustsucceed and the same is ordered as prayed for. The detentionorder dated 18.5.2007 is set aside. The detenu is directed tobe set at liberty forthwith unless his custody is required inconnection with any other case.sasiSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai – 9.2. The District Magistrate and District Collector, Villupuram District.3. The Superintendent Central Prison, Cuddalore.(In duplicate for communication to Detenu)4. The Joint Secretary to the Government,Public (Law and Order) Department,Fort St George, Chennai 9.5. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. R. Balakrishnan, Advocate SR No. 58112H.C.P.No.756 of 2007AD(CO)SR/3.10.2007