Ravichandran v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.10.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.911 of 2007Ravichandran.. PetitionerVs1. State, rep. by the Secretary to Government Prohibition and Excise Department Fort St. George, Chennai-9.2. The District Collector and District Magistrate Nagapattinam District Nagapattinam. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.O.S.Thilak PasumbadiarFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner is the cousin brother of the detenu, Mohan, sonof Shanmugam. The detenu was incarcerated by order dated 14.6.2007of the second respondent under the provisions of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)branding him as a Bootlegger. Hence, the petitioner seeks a writ ofHabeas Corpus to call for the records in connection with the order ofdetention passed by the second respondent dated 14.6.2007 inC.O.C.No.23/2007 against his cousin brother, who is now confined at https://hcservices.ecourts.gov.in/hcservices/ Central Prison, Tiruchirappalli, to set aside the same and to directthe respondents to produce the above said detenu before this Courtand set him at liberty.2. According to the respondents, the detenu was found sellingillicit arrack on 3.6.2007. The Inspector of Police, ProhibitionEnforcement Wing, Nagapattinam, apprehended the detenu and seizedthe illicit arrack found therein. The samples were sent forchemical analysis and it was found that the arrack contained 3.4% mgatropine per 100 ml. A case was registered in Crime No.1240/2007under Section 4(1)(aaa), 4(1)(i) r/w 4(1-A) of the Tamil NaduProhibition Act. 3. The second respondent, taking note of the above case as aground case and finding that there are six adverse cases of alikenature and having satisfied that there is a compelling necessity todetain the detenu in order to prevent him from indulging in theactivities which are prejudicial to the maintenance of public orderand public health, ordered his detention dubbing him as abootlegger. 4. Since the learned counsel for the petitioner assailed theorder of detention mainly on the ground of delay in considering therepresentation of the detenu, we do not propose to go into the otheraspects, as the said ground of belated consideration of therepresentation has to succeed. According to the learned counsel,there was a delay in sending parawar remarks by the sponsoringauthority, which vitiates the order of the detention.5.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.5.2. Article 22(5) of the Constitution of India suggests thatthe obligation of the government is to offer the detenu anopportunity of making a representation against the order, before itis confirmed according to the procedure laid down under the relevantprovisions 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 theState Government. Expedition is the rule and delay defeats mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre 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 and https://hcservices.ecourts.gov.in/hcservices/ Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.5. It is a constitutional obligation of the Government toconsider the representation forwarded by the detenu without anydelay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on the representation, thewords “as soon as may be” in clause (5) of Article 22 convey themessage that the representation should be considered and disposed ofat the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in thedisposal of the representation. The court can certainly considerwhether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of anyindifference or lapse in considering the representation, such delaywill adversely affect further detention of the prisoner. In otherwords, it is for the authority concerned to explain the delay, ifany, in disposing of the representation. It is not enough to saythat the delay was very short. Even longer delay can as well beexplained. So the test is not the duration or range of delay, buthow it is explained by the authority concerned. Even the reasonthat the Minister was on tour and hence there was a delay of fivedays in disposing of the representation was rejected by the ApexCourt holding that when the liberty of a citizen guaranteed underArticle 21 of the Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient to justify thedelay, since the file could be reached the Minister with utmostpromptitude in cases involving the vitally important fundamentalright of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC417.6. Coming to the case on hand, admittedly, objecting to theorder of detention dated 14.6.2007, a representation was made onbehalf of the detenu on 26.6.2007, which was received by theGovernment on 28.6.2007. Remarks were called for from the detainingauthority on 29.6.2007, which was received by the detainingauthority on 4.7.2007. The detaining authority, in turn, called forparawar remarks from the sponsoring authority on 5.7.2007 andreceived the same only on 16.7.2007 after a delay of eleven days,which is not properly explained. Even taking note of the interveningholidays, viz., 7.7.2007, 8.7.2007, 14.7.2007 and 15.7.2007 (beingSaturday and Sunday), the delay of seven days in forwarding theparawar remarks, is admittedly unexplained and inexcusable. Onreceipt of the parawar remarks from the sponsoring authority on16.7.2007, the detaining authority sent it to the Government on16.7.2007 itself. The report was received on 19.7.2007,Thereafter, the file was submitted on 20.7.2007 and the same wasconsidered by the Under Secretary and Additional Secretary on20.7.2007 itself. The file was considered by the Minister on https://hcservices.ecourts.gov.in/hcservices/

23.7.2007. The rejection letter was prepared on 25.7.2007, sent tothe detenu on 26.7.2007 and served on him on 28.7.2007. 7. At this juncture, a reference to the decision of the ApexCourt in Kundanbhai Dulabhai Sheikh v District Magistrate,Ahmedabad, (1996) 3 SCC 194 is apposite:"In spite of law laid down above by this Court repeatedlyover the past three decades, the Executive, namely, the StateGovernment and its officers continue to behave in their old,lethargic fashion and like all other files rusting in theSecretariat for various reasons including red-tapism, therepresentation made by a person deprived of his liberty,continue to be dealt with in the same fashion. The Governmentand its officers will not give up their habit of maintaininga consistent attitude of lethargy. So also, this Court willnot hesitate in quashing the order of detention to restorethe ‘liberty and freedom’ to the person whose detention isallowed to become bad by the Government itself on account ofhis representation not being disposed of at the earliest.” 8. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in consideringthe representation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperativeand it would render the continued detention impermissible andillegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC476.9. In the instant case, there is delay of seven days, excludingintervening holidays on Saturday and Sunday, in sending the parawarremarks to the detaining authority, as referred to above, and thesame, in our considered opinion, vitiates the impugned order ofdetention. We are, therefore, inclined to allow this petition. In the result, the order of detention is set aside. The detenuis directed to be set at liberty forthwith unless his presence isrequired in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ATR To:1. The Secretary to Govt., State of Tamilnadu, Prohibition and Excise Department, Fort St. George, Chennai-9.2. The District Collector and District Magistrate Nagapattinam District Nagapattinam.3. The Superintendent Central Prison Tiruchirapalli.4. The Public Prosecutor, High Court, Madras.5.The Joint Secretary to Government Public,(Law and Order) Fort St.George, Chennai-9.CU (CO)km/10.10.H.C.P.No.911 of 2007