Sumathi v. The State of Tamilnadu

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.797 of 2007Sumathi.. PetitionerVs1. The State of Tamilnadu, rep. by its Secretary to Govt., Prohibition and Excise Department, Fort St. George, Chennai-9.2. The District Magistrate and District Collector, Vellore District Vellore. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.E.KannadasanFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)Aggrieved by the order of incarceration dated 25.4.2007 of the secondrespondent under the provisions of the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Offenders, Goondas,Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and VideoPirates Act, 1982 (Tamil Nadu Act 14 of 1982), by which one Nandan,husband of the petitioner herein, was confined to Central Prison, Vellore,branding him as a Bootlegger, the petitioner seeks a writ of Habeas Corpusto call for the records in connection with the order of detention passedby the second respondent dated 25.4.2007 in C3.D.O.No.33/2007, to setaside the same and to direct the respondents to produce the above saiddetenu before this Court and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/

2. According to the respondents, the detenu was found sellingillicit arrack to some persons. The Inspector of Police, Omarabad PoliceStation, apprehended the detenu and seized the illicit arrack foundtherein. The samples were sent for chemical analysis and it was foundthat the arrack contained 6.7% mg atropine per 100 ml. A case wasregistered in Crime No.135/2007 under Section 4(1)(i), 4(1)(aaa), 4(1-A)(ii) of the Tamil Nadu Prohibition Act. 3. Taking note of the above case as ground case and seven adversecases of alike nature, the second respondent, satisfying that there is acompelling necessity to detain the detenu in order to prevent him fromindulging in the activities which are prejudicial to the maintenance ofpublic order and public health, ordered his detention dubbing him as abootlegger. 4. Since the learned counsel for the petitioner assailed the order ofdetention mainly on the ground of delay in considering the representationof the detenu, we do not propose to go into the other aspects, as the saidground of belated consideration of the representation has to succeed.According to the learned counsel, there was a delay in sending parawarremarks by the sponsoring authority to the detaining authority, whichvitiates the order of the 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 65.5.4. 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 https://hcservices.ecourts.gov.in/hcservices/ (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 25.4.2007. The detenu has made a representation dated 4.6.2007to the Government, which was received on 6.6.2007. Remarks were calledfor from the detaining authority on 7.6.2007. The detaining authoritycalled for parawar remarks from the sponsoring authority on 9.6.2007,which was received by the detaining authority only on 15.6.2007. It iscontended that there was a delay of seven days in sending the parawarremarks by the sponsoring authority to the detaining authority and in theabsence of convincing reply on behalf of the State, the order of detentionvitiates. We find some force in the contention of the learned counsel.Even excluding the intervening public holidays viz., 9.6.2007 and10.6.2007 (Saturday and Sunday), there is a delay of five days in sendingthe parawar remarks by the sponsoring authority.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 of https://hcservices.ecourts.gov.in/hcservices/ maintaining 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, admittedly, there is a delay of five days insending the parawar remarks by the sponsoring authority to the detainingauthority and in the absence of valid explanation for the said delay, inour considered opinion, the same vitiates the order of detention. We are,therefore, inclined to allow this petition. Accordingly, the order ofdetention dated 25.4.2007 is set aside. The detenue is directed to be setat liberty forthwith unless his presence is required in connection withany other case. ATR Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Govt., State of Tamilnadu, Prohibition and Excise Department, Fort St. George, Chennai-9.2. The District Magistrate and District Collector, Vellore District Vellore.3. The Superintendent Central Prison Vellore. https://hcservices.ecourts.gov.in/hcservices/

4. The Public Prosecutor, High Court, Madras.5. The Joint SecretaryPublic law & Order)Fort St George,Chennai.GG (co)sg 10/10/07H.C.P.No.797 of 200719.9.2007