M. Selvam @ Alva Selvam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.9.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.794 of 2007M. Selvam @ Alva Selvam.. PetitionerVs1. The State of Tamil Nadu rep. by its Secretary to Government Prohibition & Excise Department Fort St. George, Chennai 600009.2. The Commissioner of Police Coimbatore City Coimbatore. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus directing the respondents to produce thedetenu Viz. M.Selvam @ Alva Selvam, son of Mandira Nadar @ Murthy, who isnow detained in Central Prison, Coimbatore in pursuance of the order ofthe 2nd Respondent on 31.1.207 in C.No.05/G/IS/2007 before this Court, calfor records, set aside the order and set the detenu at liberty forthwith.For Petitioner:Mr.S.Swamidoss ManokaranFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The petitioner calls in question legality of the order of detention31.1.2007 passed by the second respondent ordering his detention under theprovisions of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Slum-Grabbers and Video Pirates Act, 1982 (in short “the Act”)branding him as a "Goonda". https://hcservices.ecourts.gov.in/hcservices/

2. The order of detention dated 31.1.2007 was passed on the basis ofground case in Crime No.33 of 2007 for alleged commission of offencesunder Sections 341, 392 and 506(ii) of I.P.C. The allegation against thedetenu was that on 8.1.2007 at about 13.30 hours, when one Jayaram wasreturning home after attending to his work, near City Cake Shop, EruCompany, Mettupalayam Road, the detenu and two others pushed down Jayaramand the detenu brandished a knife and threatened him to part with themoney. One of the associates forcibly took away Rs.250/- from the pantpocket of Jayaram. Jayaram raised hue and cry. The public nearby triedto apprehend them on the spot, but the detenu and his associatesthreatened them at the point of knife. The public ran to safer places outof fear of danger to their lives and properties, and thus the detenu andhis associate created terror and panic at the spot. The detenu wasarrested on 19.1.2007.3. The second respondent, taking note of the above case as a groundcase and finding that there are four adverse cases pending against thedetenu in Crime Nos.1329, 1330 and 1336 of 2004 on the file of B11 SaibabaColony Police Station for the offence punishable under Section 379 IPC andCrime No.28 of 2007 on the file of B11 Saibaba Colony Police Station forthe offence punishable under Section 302 IPC and having satisfied thatthere is a compelling necessity to detain him in order to prevent himfrom indulging in the activities which are prejudicial to the maintenanceof public order, ordered his detention dubbing him as a Goonda. 4. Since Mr.S.Swamidoss Manokaran, learned counsel for the petitionerchallenges the impugned order of detention dated 31.1.2007 mainly on theground of delay in considering the representation dated 26.5.2007 made onbehalf of the detenu, we do not propose to go into the other aspects ofthe case. According to the learned counsel for the petitioner, there wasa delay in considering the representation by the Minister concerned, whichvitiates the order of detention.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 31.1.2007. A representation was made to the detaining authorityon 26.5.2007 and the detaining authority received the same on 31.5.2007.After calling for parawar remarks from the Sponsoring Authority, a reportwas sent to the Government on 8.6.2007. The file was circulated on14.6.2007. The Under Secretary and the Additional Secretary dealt withthe file on 15.6.2007. But, the file was considered by the Ministerconcerned only on 21.6.2007 and ultimately the representation was rejectedon the same day itself i.e. on 21.6.2007. Even though the UnderSecretary and the Additional Secretary dealt with the file on 15.6.2007,the Minister concerned dealt with the file only on 21.6.2007. The delayin considering the representation by the Minister concerned, viz., between15.6.2007 and 21.6.2007 - a period of six days, was highlighted by thelearned counsel for the petitioner. Even though 16.6.2007 and 17.6.2007happened to be public holidays, there is no convincing reply on behalf ofthe State for the delay in considering the representation by the Ministerconcerned. We find some force as well as substance in this contention.We fail to understand as to why the matter was delayed for four days(excluding Saturday and Sunday), between 15.6.2007 and 21.6.2007. There https://hcservices.ecourts.gov.in/hcservices/ 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 a delay of four days in consideringthe representation, 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 dated31.1.2007 is quashed. The detenu is directed to be set at libertyforthwith unless his presence is required in connection with any othercase.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATR https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government, State of Tamil Nadu, Prohibition & Excise Department, Fort St. George, Chennai 600009.2. The Commissioner of Police Coimbatore City Coimbatore.3. The Superintendent, Central Prison, Coimbatore.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary,Government of Tamil Nadu,Public [Law and Order]Fort St. George, Chennai 9.+ 1 CC To Mr. S.Swamidoss Manokaran, Advocate SR NO.58328H.C.P.No.794 of 2007mdr[co]dcp/1.10