T.Melcy v. State by Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-92 & Ors.

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 19.07.2011CORAM:THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAANDTHE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANHCP(MD)No.368/2011T.Melcy Petitioner Vs1.State by Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-92.The District Collector and District Magistrate Kanyakumari District at Nagercoil RespondentsPrayer:- This Habeas Corpus Petition is filed to issue a Writ of HabeasCorpus to call for records from the 2nd defendant in PD.No.03/2011 dated16.04.2011, to set aside the same and to set at liberty the detenu Arulraj@ Kannan, S/o.Kuruvan @ Thankanadar, now detained in the Central Prison,Palayamkottai.For Petitioner :Mr.C.Mayil Vahana RajendranFor Respondents:Mr.Jyothi, APP ORDER(Order of the Court was made by ARUNA JAGADEESAN J.)The petitioner is the mother of the detenu Arulraj @ Kannan. Thepetitioner has come forward with this Habeas Corpus Petition, seeking forthe relief of quashing the impugned detention order dated 16.04.2011,slapped on her son branding him as “Goonda” as contemplated under the TamilNadu Prevention 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 14/1982). 2. Mr.C.Mayil Vahana Rajendran, the learned counsel for thepetitioner mainly contended that there is unexplained delay in consideringand disposing of the representation of the detenu, which would vitiate theimpugned detention order. It is pointed out by the learned counsel forthe petitioner that the detenu sent his representation dated 02/03.05.2011and the same was received by the Government on 05.05.2011 and remarks werecalled for on 06.05.2011 and a reminder has been sent on 17.05.2011 andremarks have been received on 24.05.2011 and as such, even calling for theremarks and for receiving the remarks, after deducting six intermittentholidays, there is a delay of sixteen days. It is further contended thatthe authorities concerned, after the receipt of the remarks, dealt with theremarks on 25.05.2011 and the file was sent to the Hon'ble Minister for(Electricity and Prohibition and Excise) on 07.06.2011 and the rejectionletter was prepared on 08.06.2011 and the rejection letter was sent to thedetenu on 09.06.2011 and ultimately the same was served on the detenu on11.06.2011 and after deducting the four intermittent holidays, there is afurther delay of twelve days in considering the representation and there https://hcservices.ecourts.gov.in/hcservices/ 2is, totally, twenty eight days delay and there is no explanation for thesame and as such, the impugned order of detention is vitiated and the sameis liable to be quashed.3. In support of his contentions, the learned counsel for thepetitioner placed reliance on the decision of this Court reported in 2007-2-MWN-Cr-145-DB (Sumaiya vs. The Secretary to Government, Prohibition andExcise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 andanother).4. Per contra, Mr.P.Jyothi, the learned Additional Public Prosecutorwould submit that for receiving the remarks, there is a delay of sixteendays only. It is further contended that as the authorities concerned, afterthe receipt of the remarks, dealt with the remarks on 25.05.2011 and thefile was sent to the Hon'ble Minister for (Electricity and Prohibition andExcise) on 07.06.2011 and the rejection letter was prepared on 08.06.2011and the rejection letter was sent to the detenu on 09.06.2011 andultimately the same was served on the detenu on 11.06.2011. He would submitthat four intermittent holidays interfered which has resulted in the delayin considering the representation and that there was no deliberate delay onthe part of the authorities concerned to consider and dispose of therepresentation of the detenu. It is contended that such a delay is notfatal to the impugned detention order, as the authorities concerned aredealing with the file right from the date of receipt of the remarks. 5. We have given our careful and anxious consideration to the rivalsubmissions put forward by the learned counsel on either side and alsoperused the impugned order of detention and the materials placed on record.6. At the outset, it is to be stated by this Court that there is anunexplained delay in considering and disposing of the representation of thedetenu at two different stages. It is seen that at the first stage, thereis a delay in calling for the remarks and receiving the remarks and at thesecond stage, there is also further delay in considering and disposing ofthe representation of the detenu. The perusal of the proforma produced bythe learned Additional Public Prosecutor would reveal that the detenu senthis representation dated 02/03.05.2011 and the same was received by theGovernment on 05.05.2011 and remarks were called for on 06.05.2011 and areminder has been sent on 17.05.2011 and remarks have been received on24.05.2011. Therefore, it is evident that at the first stage, there aretwenty two days delay and there were six intermittent holidays and if wegive concession for those six days, there is a delay of sixteen days inreceiving the remarks by the authorities concerned. We are of theconsidered view that there is absolutely no explanation whatsoeverforthcoming from the authorities concerned for such a delay. 7. It is also pertinent to note that at the second stage, afterreceiving the remarks, the authorities concerned dealt with the remarks on25.05.2011 and the file was sent to the Hon'ble Minister for (Electricityand Prohibition and Excise) only on 07.06.2011 and the rejection letter wasprepared on 08.06.2011 and the rejection letter was sent to the detenu on09.06.2011 and ultimately the same was served on the detenu on 11.06.2011.After deducting the four intermittent holidays, there is a further delay oftwelve days in considering and disposing of the representation of thedetenu and there is, totally, twenty eight days delay in considering therepresentation of the detenu. But, there is absolutely no explanation https://hcservices.ecourts.gov.in/hcservices/ 3whatsoever forthcoming from the authorities concerned for such unexplaineddelay. 8. At this Stage, it is relevant to refer to a few decisions of theHonourable Supreme Court and the same are extracted as follows:-“(i) The Hon'ble Apex Court in Rashid sk. v. State of WestBengal reported in 1973 (3) SCC 476 has held as follows:- “The ultimate objective of this provision can only be the mostspeedy consideration of his representation by the authoritiesconcerned, for, without its expeditious consideration with asense of urgency the basic purpose of affording earliestopportunity of making the representation is likely to bedefeated. This right to represent and to have therepresentation considered at the earliest flows from theconstitutional guarantee of the right to personal liberty –the right which is highly cherished in our Republic and itsprotection against arbitrary and unlawful invasion.”(ii) The Honb'le Apex Court in Ram Sukrya Mhatre v.R.D.Tyagi, 1992 Supp (3) SCC 65 held that the right torepresentation under Article 22(5) of the Constitution ofIndia includes right to expeditious disposal by the StateGovernment. Expedition is the rule and delay defeats mandateof Article 22(5) of the Constitution of India.(iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India andothers reported in 1989 SCC (Crl) 554 has held:-The supine indifference, slackness and callous attitude on thepart of the Jail Superintendent who had unreasonably delayedin transmitting the representation as an intermediary, hadultimately caused undue delay in the disposal of theappellant's representation by the government which receivedthe representation 11 days after it was handed over to thejail Superintendent by the detenu. This avoidable andunexplained delay has resulted in rendering the continueddetention of the appellant illegal and constitutionallyimpermissible........When it is emphasised and re-emphasised by a series ofdecisions of the Supreme Court that a representation should beconsidered with reasonable expedition, it is imperative on thepart of every authority, whether in merely transmitting ordealing with it, to discharge that obligation with allreasonable promptness and diligence without giving room forany complaint of remissness, indifference or avoidable delaybecause the delay, caused by slackness on the part of anyauthority, will ultimately result in the delay of the disposalof the representation which in turn may invalidate the orderof detention as having infringed the mandate of Article 22(5).(iv) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 andRaghavendra Singh v. Superintendent, District Jail, 1986 (1) https://hcservices.ecourts.gov.in/hcservices/ 4SCC 650, the Apex Court held that any inordinate andunexplained delay on the part of the Government in consideringthe representation renders the detention illegal.(v) In yet another decision of the Hon'ble Apex Court reportedin 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu), it isheld that it is a constitutional obligation of the Governmentto consider the representation forwarded by the detenu withoutany delay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on therepresentation, the words “as soon as may be” in clause (5) ofArticle 22 convey the message that the representation shouldbe considered and disposed of at the earliest. But that doesnot mean that the authority is preempted from explaining anydelay which would have occasioned in the disposal of therepresentation. The Court can certainly consider whether thedelay was occasioned due to the permissible reasons orunavoidable causes. If delay was caused on account of anyindifference or lapse in considering the representation suchdelay will adversely affect further detention of the prisoner.In other words, it is for the authority concerned to explainthe delay, if any, in disposing of the representation. It isnot enough to say that the delay was very short. Even longerdelay can as well be explained. So the test is not theduration or range of delay, but how it is explained by theauthority concerned. Even the reason that the Minister was ontour and hence there was a delay of five days in disposing ofthe representation was rejected by the Apex Court holding thatwhen the liberty of a citizen guaranteed under Article 21 ofthe Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify thedelay, since the file could be reached the Minister withutmost promptitude in cases involving the vitally importantfundamental right of a citizen.(vi) In K.M.Abdulla Kunni v. Union of India, 1991 (1) SCC 476,it is held as follows:-“That part, it is settled law that there should not be supineindifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal of therepresentation would be breach of the constitutionalimperative and it would render the continued detentionimpermissible and illegal.”9. The right to make a representation against an order of detentionis not only a constitutional right, but a statutory right as well. Sincethe Constitution as also the Act specifically provide that the detenu shallbe given the earliest opportunity of making a representation against theorder of detention, it is implicit that there is a corresponding duty onthe authorities to whom the representation is made to dispose of therepresentation at the earliest or else the constitutional and the statutoryobligation to provide the earliest opportunity of making a representationwould lost both its purpose and meaning. The court in a large number ofcases, has already laid down the principle in clear and specific terms thatthe representation has to be disposed of at the earliest and if there has https://hcservices.ecourts.gov.in/hcservices/ 5been any delay in the disposal of the representation, the reasons for thedelay must be indicated to the court or else the unexplained delay orunsatisfactory explanation in the disposal of the representation wouldtotally affect the order of detention and in that situation, continueddetention would become bad. 10. This Court has repeatedly held that even the unexplained delayof three days is construed to be fatal to the detention order in thedecision reported in 2007 (2) MWN (Cr.) 145 (DB) Sumaiya vs. The Secretaryto Government, Prohibition and Excise Department, Government of Tamil Nadu,Fort St. George, Chennai-9 and another. This court has also held that theunexplained delay in the disposal of the representation would definitelyamount to breach of the constitutional imperative and the same would rendera continued detention impermissible and illegal. It is well settled thatthere should not be supine indifference, slackness or callous attitude inconsidering the representation. In the decisions cited supra, theunexplained delay of even three days is held to have vitiated the order ofdetention. 11. In so far as the case on hand is concerned, we have alreadypointed out that there is, totally, unexplained delay of twenty eight daysin considering and disposing of the representation of the detenu and assuch, the same would vitiate the impugned order of detention. It isneedless to say that the guarantee of earliest disposal of therepresentation set out in Art.22(5) of the Constitution of India has beeninfringed. Therefore, in view of the above said observations, we areconstrained to quash the impugned order of detention. 12.In the result, this Habeas Corpus Petition is allowed and theimpugned detention order passed by the 2nd defendant in PD.No.03/2011dated 16.04.2011 is hereby quashed and the detenu Arulraj @ Kannan is setat liberty forthwith, unless his detention is required in connection withany other case.Sd/-Assistant Registrar (Records)/True copy/Sub Assistant Registrar(C.S) To:1.State by Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-92.The District Collector and District Magistrate Kanyakumari District at Nagercoil3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, MaduraiSrcmHCP(MD)No.368/201119.07.2011TR : 28.07.2011: 5p/4c