Raj @ Rajkumar @ Siva v. The Secretary to Govt. Prohibition and Excise Department Secretariat

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.921 of 2007Raj @ Rajkumar @ Siva.. PetitionerVs1. The Secretary to Govt. Prohibition and Excise Department Secretariat, Chennai-9.2. The Commissioner of Police Chennai City Egmore, Chennai 600 008. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.S.Ramesh BabuFor Respondents:Mr.N.R.Elango Additional Public ProsecutorORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner calls in question legality of the order of detention28.5.2007 passed by the second respondent ordering his detention under theprovisions of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Slum-Grabbers and Video Pirates Act, 1982 (in short “the Act”)branding him as an "Immoral Traffic Offender".2. According to the detaining authority, viz., the second respondent,the ground case is said to have taken place on 7.5.2007 at about 6.30 p.m.on the basis of the complaint lodged by one Jabaraj. According to thecomplainant, when he was waiting for bus at Velacherry bus stand, oneNandhagopal came and solicited him for prostitution by showing threeteenage girls. The complainant replied that he would come back with moneyand lodged a complaint in this regard. A case was registered in Crime https://hcservices.ecourts.gov.in/hcservices/ No.37 of 2007 on the file of Anti Vice Squad Police Station, Chennai City,for the offences punishable under Sections 3(1), 4(1), 5(1), 6(1) and 7(1)of ITP Act. During investigation, the said Nandhagopal gave a confessionstatement, based on which, the detenu herein, who, under the guise ofgetting chance in cinema and TV serials, forced some girls intoprostitution business, for earning huge money, was arrested on 7.5.2007and remanded to judicial custody.3. The second respondent, taking note of the above case as a groundcase and finding that there are two adverse cases pending against thedetenu for the offences punishable under Sections 4(1), 5(1) and 7(1) ofthe ITP Act in Crime Nos.14 and 15 of 2007 on the file of Anti Vice SquadPolice Station and having satisfied that there is a compelling necessityto detain him in order to prevent him from indulging in the activitieswhich are prejudicial to the maintenance of public order, ordered hisdetention dubbing him as an Immoral Traffic Offender. 4. The learned counsel for the petitioner challenges the impugnedorder of detention only on the ground of delay in preparing the rejectionorder. 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(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 have https://hcservices.ecourts.gov.in/hcservices/ occasioned 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. Coming to the case on hand, admittedly, objecting to the order ofdetention dated 28.5.2007, a representation was made on behalf of thedetenu on 20.6.2007, which was received by the Government on 21.6.2007.Remarks were called for from the detaining authority on 22.6.2007, who, inturn, called for parawar remarks from the sponsoring authority and onreceipt of the same, the detaining authority sent it to the Government andthe same was received on 2.7.2007. Thereafter, the file was submitted on3.7.2007 and the same was considered by the Under Secretary and AdditionalSecretary on 5.7.2007. The file was considered by the Minister on6.7.2007. However, the rejection letter was prepared on 16.7.2007, aftera delay of ten days, which is not properly explained. Even taking note ofthe intervening holidays, viz., 7.7.2007, 8.7.2007, 14.7.2007 and15.7.2007 (being Saturday and Sunday), the delay of six days in preparingthe order of rejection, is admittedly unexplained and inexcusable.Thereafter, the order of rejection was sent on 17.7.2007 and served on thedetenu on 18.7.20077. 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 his https://hcservices.ecourts.gov.in/hcservices/ representation 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, there is delay of six days in preparing theorder of rejection, as referred to above, and the same, in our consideredopinion, vitiates the impugned order of detention. We are, therefore,inclined to allow this petition. In the result, the order of detention dated 28.5.2007 is set aside.The detenu is directed to be set at liberty forthwith unless his presenceis required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarATR To:1. The Secretary to Govt. Prohibition and Excise Department Secretariat, Chennai-9.2. The Commissioner of Police Chennai City, Egmore, Chennai 600 008.3. The Superintendent Central Prison, Puzhal, Chennai.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law and Order), Fort St.George, Chennai -9.H.C.P.No.921 of 2007 AKR(CO)RVL 10.10.2007