CORAMTHE HONOURABLE MR v. The Commissioner of Police Greater Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.9.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.838 of 2007Easai.. PetitionerVs.1. The Commissioner of Police Greater Chennai, Egmore Chennai – 600 008.2. The State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise Department Fort St.George, Chennai-9... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India toissue Habeas Corpus calling for the records of the Ist respondent hereinin Memo No. 157/DGFGESSV/07 setting aside the order of detention passedtherein dated 10.4.2007 directing the respondents herein to produce thedetenu by name Stephen, S/o George, (who is the petitioners son) beforethis court and setting the detenu at liberty now detained in CentralPrison. Puzhal.For Petitioner : Mr.M.SasikumarFor Respondents : Mr.P.Kumaresan Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The first respondent herein clamped an order of detention as againstthe detenu – Stephen, son of the petitioner, as the said authority arrivedat the subjective satisfaction that the said detenu is a Goonda and he hasto be detained under Section 3(1) of the Tamil Nadu Prevention of https://hcservices.ecourts.gov.in/hcservices/ Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).2. Challenging the abovesaid detention, the mother of the detenu hascome forward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to call for the records of the detention orderNo.157/BDFGISSV/2007, dated 10.4.2007 passed by the first respondent, toquash the same and to direct the respondents to produce the detenu, nowconfined in Central Prison, Puzhal before this Court and to set him atliberty.3. On the basis of a complaint lodged by one Srinivasan that on28.3.2007 at about 16.00 hours, the detenu and one Nehru threatened him atthe knife point and forcibly took Rs.200/- from his pocket and a wristwatch and also threatened the public who came for his rescue that theywould be killed and hurled the soda water bottles against them and madethem to run on all sides seeking shelter resulting in traffic dislocation,the detenu was arrested and a case was registered in Crime No.120/2007 onthe file of D7, Tank Factory Police Station, for the offence punishableunder Sections 341, 427, 336, 392, 397 and 506(ii) IPC.4. The second respondent, taking the above case as a ground case andeight adverse cases pending against the detenu for the offences punishableunder Sections 379, 457, 380, 511, 397 and 392 IPC and having satisfiedthat there is a compelling necessity to detain the detenu in order toprevent him from indulging in the activities which are prejudicial to themaintenance of public order, ordered his detention dubbing him as aGoonda. 5. 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 serving therejection letter on the detenu, which vitiates the order of the detention.6.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.6.2. 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 . https://hcservices.ecourts.gov.in/hcservices/

6.3. 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 65.6.4. 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 650.6.5. 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 417.7. In the case on hand, the impugned order of detention came to bepassed on 10.4.2007. The detenu has made a representation dated 30.4.2007to the Government, which was received on 2.5.2007. Remarks were calledfor from the detaining authority on 3.5.2007, who in turn, called forparawar remarks from the sponsoring authority and on receipt of the sameby the Government on 14.5.2007, the file was circulated on 15.5.2007 andthe Under Secretary and the Deputy Secretary dealt with the file on16.5.2007 and on 17.5.2007, the Minister concerned rejected the same. Itis contended that even though the rejection letter was prepared on18.5.2007 and sent on 18.5.2007 itself, the same was served on the detenu https://hcservices.ecourts.gov.in/hcservices/ only on 24.5.2007 and in the absence of convincing reply on behalf of theState, the order of detention vitiates. We find some force in thecontention of the learned counsel. Even excluding the intervening publicholidays viz., 19.5.2007 and 20.5.2007 (Saturday and Sunday), there is adelay of four days in serving the rejection letter on the detenu.8. 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.” 9. 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 476.10. In the instant case, admittedly, there is a delay of four days inserving the rejection letter on the detenu and in the absence of validexplanation 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 10.4.2007 is setaside. The detenu is directed to be set at liberty forthwith unless hispresence is required in connection with any other case.ATRSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1. The Commissioner of Police Greater Chennai, Egmore Chennai – 600 008.2. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai – 9.3. The Superintendent Central Prison Puzhal, Chennai. 4. The Public Prosecutor High Court, Madras.5. THE JOINT SECTRETARY TO GOVT (LAW & ORDER) FORT ST GEORGE) CHENNAI.KSJ (co)sg 08/10/07H.C.P.No.838 of 200724.9.2007