Muniyappan 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.823 of 2007Muniyappan.. PetitionerVs1. The State of Tamilnadu, rep. by its Secretary to Govt., Prohibition and Excise Department, Fort St. George, Chennai-9.2. The Commissioner of Police, Salem City. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus call for the entire records leading to thedetention of the Petitioner's father namely Settu Son of Raman detainedunder Act 14/82 vide detention order dated 21.5.2007 on the file of the 2ndRespondent herein made in the CMP.No.18/B.L.Salem City/2007 quash the sameand consequently direct the Respondents herein to produce the body andperson of the said detenu Settu before this Honourable Court.For Petitioner:Ms.R.Subadra DeviFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner is the son of the detenu Settu, son of Raman. Thedetenu was incarcerated by order dated 21.5.2007 of the second respondentunder the provisions of the Tamil Nadu Prevention of Dangerous Activitiesof Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982(Tamil Nadu Act 14 of 1982) branding him as a Bootlegger. Hence, thepetitioner seeks a writ of Habeas Corpus to call for the records in https://hcservices.ecourts.gov.in/hcservices/ connection with the order of detention passed by the second respondentdated 21.5.2007 in C.M.P.No.18/B.L./Salem/City/2007 against his father,who is now confined at Central Prison, Salem, to set aside the same and todirect the respondents to produce the above said detenu before this Courtand set him at liberty.2. According to the respondents, the detenu was found selling illicitarrack on 4.5.2007 at 15.00 hours. The Sub Inspector of Police,Kitchipalayam Police Station, apprehended the detenu and seized theillicit arrack found therein. The samples were sent for chemical analysisand it was found that the arrack contained 6.9% mg atropine per 100 ml. Acase was registered in Crime No.502/2007 under Section 4(1)(i), 4(1)(a) &4(1-A) of the Tamil Nadu Prohibition Act. 3. The second respondent, taking note of the above case as a groundcase and finding that there are two adverse cases of alike nature andhaving satisfied that there is a compelling necessity to detain the detenuin order to prevent him from indulging in the activities which areprejudicial to the maintenance of public order and public health, orderedhis detention dubbing him as a bootlegger. 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 preparing therejection letter, which vitiates 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. https://hcservices.ecourts.gov.in/hcservices/

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 21.5.2007. The detenu has made a representation dated 9.6.2007to the Government, which was received on 11.6.2007. Remarks were calledfor from the detaining authority on 12.6.2007. The detaining authority inturn called for parawar remarks from the sponsoring authority on19.6.2007, which was received by the detaining authority on 21.6.2007. Areport was sent to the Government on 21.6.2007 itself, which was receivedon 22.6.2007. The file was circulated on 26.6.2007. The Under Secretaryand the Additional Secretary dealt with the file on 26.6.2007. TheMinister concerned ultimately rejected the representation on 27.6.2007.It is contended that even though the representation was rejected by theMinister concerned on 27.6.2007, the rejection letter was prepared only on5.7.2007 with a delay of eight days and in the absence of convincing replyon behalf of the State, the order of detention vitiates. We find someforce in the contention of the learned counsel. Even excluding theintervening public holidays viz., 30.6.2007, 1.7.2007 (Saturday andSunday), there was a delay of six days in preparing the rejection letterby the Government.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 and https://hcservices.ecourts.gov.in/hcservices/ its 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, admittedly, there is a delay of six days inpreparing the rejection letter by the Government and in the absence ofvalid explanation for the said delay, in our considered opinion, the samevitiates the order of detention. We are, therefore, inclined to allowthis petition. Accordingly, the order of detention dated 21.5.2007 is setaside. The detenu is directed to be set at liberty forthwith unless hispresence is required in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATR To:1. The Secretary to Govt., State of Tamilnadu, Prohibition and Excise Department, Fort St. George, Chennai-9.2. The Commissioner of Police Salem City. https://hcservices.ecourts.gov.in/hcservices/

3. The Superintendent Central Prison Salem.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public [Law and order] Fort St. George, Madras 9.H.C.P.No.823 of 2007ts[co]gp/5.10.