Anjalai v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.02.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.5 of 2008Anjalai... Petitioner vs.1. State, rep. by Secretary to Govt., Prohibition and Excise Dept., Secretariat, Chennai-9.2. The District Collector & District Magistrate, Kancheepuram District, Kancheepuram.... Respondents PRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus directing the Respondents toproduce the detenu Kannaiyan @ Punderikhan, son of Devan, who is nowdetained in Central Prison, Puzhal, Chennai-600 066, in pursuance ofthe order passed by the Second respondent on 12.12.2007 inB.D.G.F.I.S.S.V.No.79 of 2007 before this Honourable Court call forthe records set aside the order and set the detenu at liberty.For Petitioner:Mr.S.Swamidoss ManokaranFor Respondents:Mr.N.R.ElangoAdditional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of this Court was made by P.D.DINAKARAN,J.)The order of detention dated 12.12.2007, clamped on the detenuby name Kannaiyan @ Punderikhan, by the second respondent inB.D.F.G.I.S.S.V.No.79 of 2007, branding him as a Bootlegger underSection 3(1) of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug Offenders, Forest Offenders, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982), is being challenged in thiswrit petition by the wife of the detenu.2. On 12.10.2007 at 14.30 hours, when the Inspector of Policeand his police party were on their routine raids, they found thedetenu handing over a plastic can having 10 litres of capacity to aperson near the lake bund of Karikanthangal Colony. On seeing thepolice, the other person escaped and when the detenu attempted toescape, he was arrested and the police secured the plastic can, whichcontained rectified spirit. The police also seized three plastic canscontaining 35 litres of rectified spirit. A case was registered inChithamur Police Station Cr.No.286/2007 under Section 4(1)(i), 4(1-A), 4(1)(aaa) of the Tamil Nadu Prohibition Act r/w 6 & 11 of RSRules 2000 and the detenu was sent to judicial custody. Samples ofrectified spirit were sent for chemical analysis and the ChemicalAnalyst has opined that the samples contained 8.2%, 8.3% and 8.4% mg.w/v of atropine, which is poisonous.3. The detaining authority, taking note of the above ground caseas well as seven adverse cases of similar nature one on the file ofsame police station in Crime Nos.63/2005, 125/2005, 196/2005,215/2005, 222/2006, 155/2007 and 193/2007 and having arrived at thesubjective satisfaction 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 a Bootlegger.4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay inconsidering the representation dated 28.12.2007 made on behalf of thedetenu. Hence, we do not propose to go into other aspects of thecase, as the said ground has to succeed.5.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point. https://hcservices.ecourts.gov.in/hcservices/

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 oflaw, 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 mandate ofArticle 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 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 say thatthe delay was very short. Even longer delay can as well be explained.So the test is not the duration or range of delay, but how it isexplained by the authority concerned. Even the reason that theMinister was on tour and hence there was a delay of five days indisposing of the representation was rejected by the Apex Courtholding that when the liberty of a citizen guaranteed under Article21 of the Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitudein cases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417. https://hcservices.ecourts.gov.in/hcservices/

6.1. Coming to the case on hand, admittedly, objecting to theorder of detention dated 12.12.2007, a representation dated28.12.2007 was made on behalf of the detenu, which was received bythe Government on 31.12.07. Remarks were called for from thedetaining authority on 2.11.08 and the same were received by theGovernment only on 14.1.2008, i.e. after a delay of 12 days. Evenafter receipt of the same, the file was circulated on 8.2.2008, aftera delay of 25 days. The above said delay, which remained explained,was highlighted by the learned counsel for the petitioner.Thereafter, on 8.2.2008, the file was considered by the UnderSecretary and Additional Secretary and the Minister concernedconsidered the same on 11.2.2008 and rejected it. The rejectionletter was prepared on 12.2.2008 and it was sent to the detenu on13.2.2008.6.2.From the above details, it is evident that there is enormousdelay on two occasions, viz., firstly, delay of 12 days on the sideof the detaining authority in sending the remarks to the detainingauthority and secondly, delay of 25 days on the side of theGovernment in circulating the file for consideration of theauthorities concerned, even after the receipt of the remarks from thedetaining authority. There is no convincing explanation for theabove said delay on the side of the Government.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 repeatedly overthe 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 maintaining aconsistent attitude of lethargy. So also, this Court will nothesitate in quashing the order of detention to restore the‘liberty and freedom’ to the person whose detention is allowedto become 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 besupine indifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperative andit would render the continued detention impermissible and illegal,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476. https://hcservices.ecourts.gov.in/hcservices/

9. As already stated, there is inordinate delay in consideringthe representation made on behalf of the detenu, as referred toabove, which, in our considered opinion, has rendered the order ofdetention illegal and hence, the petition has to succeed on thisground. Accordingly, the order of detention is set aside and theHabeas Corpus Petition is allowed. The detenu is directed to be setat liberty forthwith unless his presence is required in connectionwith any other case.sraSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo:1. The Secretary to Government, Home,Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9.2. The District Collector & District Magistrate, Kancheepuram District, Kancheepuram.3. The Superintendent, Central Prison,Puzhal(Induplicate for Communication to Detenu) Chennai.4. The Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai-9.5. The Public Prosecutor, High Court, Madras.TS(CO)DCP/22.2H.C.P.No.5 of 2008