CORAMTHE HONOURABLE MR v. The State of Tamil Nadu

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.852 of 2007Suresh.. PetitionerVs.1. The State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise Department Fort St.George, Chennai-9.2. The District Magistrate and District Collector Kancheepuram District Kancheepuram. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India toissue Habeas Corpus directing the respondents to produce the detenu viz,Perumal, S/o Subbarayan, who is now detained in Central Prison, Chennai -066, inpursuance of the detention order passed by the 2nd respondent on23.5.2007 in BEFGISSV No. 35 of 2007 before this Court, call for therecords, set aside the order and set the detenu at liberty forthwith.For Petitioner : Mr.S.Swamidoss ManokaranFor Respondents : Mr.P.Kumaresan Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner is the son-in-law of the detenu Perumal, son ofSubbarayan. The detenu was incarcerated by order dated 23.5.2007 of thesecond respondent under the provisions of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as aBootlegger. Hence, the petitioner seeks a writ of Habeas Corpus to call https://hcservices.ecourts.gov.in/hcservices/ for the records in connection with the order of detention passed by thesecond respondent dated 23.5.2007 in BDFGISSV.No.35/2007 against hisfather-in-law, who is now confined at Central Prison, Chennai, to setaside the same and to direct the respondents to produce the above saiddetenu before this Court and set him at liberty.2. On 5.5.2007, the detenu had sold illicit arrack containingatropine of 8.8 mg per 100 ml. A case was registered in CrimeNo.207/2007 on the file of Acharapakkam Police Station under Section 4(1-A), 4(1)(i) and 4(1)(aaa) of the Tamil Nadu Prohibition Act. 3. The second respondent, taking note of the above case as a groundcase and finding that there are nine adverse cases of alike nature andhaving satisfied that there is a compelling necessity to detain thedetenu in 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 650.5.5. 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 to https://hcservices.ecourts.gov.in/hcservices/ be 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 23.5.2007. A representation was made on behalf of the detenu on9.6.2007 to the Government, which was received on 12.6.2007. Remarks werecalled for from the detaining authority on 13.6.2007, who in turn, calledfor parawar remarks from the sponsoring authority on 19.6.2007 and onreceipt of the same by the Government on 25.6.2007, the file wascirculated on 26.6.2007 and the Under Secretary and the AdditionalSecretary dealt with the file on 27.6.2007 and on 28.6.2007, the Ministerconcerned rejected the same. It is contended that even though theMinister concerned rejected the representation of the detenu on 28.6.2007,the rejection letter was prepared only on 5.7.2007 and in the absence ofconvincing reply on behalf of the State, the order of detention vitiates.We find some force in the contention of the learned counsel. Evenexcluding the intervening public holidays viz., 30.6.2007 and 1.7.2007(Saturday and Sunday), there is a delay of five days in preparing therejection letter.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. The https://hcservices.ecourts.gov.in/hcservices/ Government 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 five days inpreparing the rejection letter and in the absence of valid explanation forthe said delay, in our considered opinion, the same vitiates the order ofdetention. We are, therefore, inclined to allow this petition.Accordingly, the order of detention dated 23.5.2007 is set aside. Thedetenu is directed to be set at liberty forthwith unless his presence isrequired in connection with any other case.ATRSd/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 Kancheepuram District Kancheepuram.3. The Superintendent Central Prison Chennai. 4. The Public Prosecutor High Court, Madras.5. The Joint Secretary to Govt, Public (Law & order) Fort st George, Chennai-9.KSJ (co)sg 08/10/07H.C.P.No.852 of 200724.9.2007