Ramasamy v. The District Collector and District Magistrate Tirunelveli District

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 20.09.2011CORAM:THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAANDTHE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANHCP(MD)No.537/2011Ramasamy Petitioner Vs1.The District Collector and District Magistrate Tirunelveli District2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9RespondentsPrayer:- This Habeas Corpus Petition is filed to issue a Writ ofHabeas Corpus to call for records from the 1st respondent inMHS.Confdl.No.18/2011 dated 24.06.2011, to set aside the sameand to set at liberty the detenu Tamizhan @ Thamilselvan @Ramaraj, aged 49 years old, son of Ramasamy, now detained in theCentral Prison, Palayamkottai.For Petitioner :Mr.K.PrabhuFor Respondents:Mr.C.Ramesh, APP ORDER(Order of the Court was made by ARUNA JAGADEESAN J.)The petitioner is the father of the detenu. Thepetitioner has come forward with this Habeas Corpus Petition,seeking for the relief of quashing the impugned detention orderdated 24.06.2011, slapped on the detenu branding him as “Goonda”as contemplated under the Tamil Nadu Prevention of DangerousActivities 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.K.Prabhu, the learned counsel for the petitionermainly contended that there is unexplained delay in consideringand disposing of the representation of the detenu, which wouldvitiate the impugned detention order. It is pointed out by thelearned counsel for the petitioner that the detenu sent hisrepresentation dated 04.07.2011 and the same was received by theGovernment on 06.07.2011 and remarks were called for on07.07.2011 and and remarks have been received on 14.07.2011 and https://hcservices.ecourts.gov.in/hcservices/ 2as such, even calling for the remarks and for receiving theremarks, after deducting two intermittent holidays, there is adelay of five days. It is further contended that the file wassubmitted on 15.07.2011, the authorities concerned, after thereceipt of the remarks, dealt with the remarks on 15.07.2011 andthe Hon'ble Minister for (Electricity and Prohibition andExcise) dealt with the remarks on 21.07.2011 and as such, afterdeducting two intermittent holidays, there is a further delay offour days in considering the representation by the authoritiesconcerned and there is, totally, nine days delay and there isno explanation for the same and as such, the impugned order ofdetention is vitiated and the same is liable to be quashed.3. In support of his contentions, the learned counselfor the petitioner placed reliance on the decision of this Courtreported in 2007-2-MWN-Cr-145-DB (Sumaiya vs. The Secretary toGovernment, Prohibition and Excise Department, Government ofTamil Nadu, Fort St. George, Chennai-9 and another).4. Per contra, Mr.P.Jyothi, the learned Additional PublicProsecutor would submit that for receiving the remarks, there isa delay of five days only. It is further contended that the filewas submitted on 15.07.2011, the authorities concerned, afterthe receipt of the remarks, dealt with the remarks on 15.07.2011and the Hon'ble Minister for (Electricity and Prohibition andExcise) dealt with the remarks on 21.07.2011. He would submitthat four intermittent holidays intervened which has resulted inthe delay in considering the representation and that there wasno deliberate delay on the part of the authorities concerned toconsider and dispose of the representation of the detenu. It iscontended that such a delay is not fatal to the impugneddetention order, as the authorities concerned are dealing withthe file right from the date of receipt of the remarks. 5. We have given our careful and anxious consideration tothe rival submissions put forward by the learned counsel oneither side and also perused the impugned order of detention andthe materials placed on record.6. At the outset, it is to be stated by this Court thatthere is an unexplained delay in considering and disposing ofthe representation of the detenu at two different stages. It isseen that at the first stage, there is a delay in calling forthe remarks and receiving the remarks and at the second stage,there is also further delay in considering and disposing of therepresentation of the detenu. The perusal of the proformaproduced by the learned Additional Public Prosecutor wouldreveal that the detenu sent his representation dated 04.07.2011and the same was received by the Government on 06.07.2011 andremarks were called for on 07.07.2011 and and remarks have beenreceived on 14.07.2011. Therefore, it is evident that at thefirst stage, there are seven days delay and there were twointermittent holidays and if we give concession for those days,there is a delay of five days in receiving the remarks by theauthorities concerned. We are of the considered view that thereis absolutely no explanation whatsoever forthcoming from theauthorities concerned for such a delay. 7. It is also pertinent to note that at the second stage,the file was submitted on 15.07.2011, the authorities concerned, https://hcservices.ecourts.gov.in/hcservices/ 3after the receipt of the remarks, dealt with the remarks on15.07.2011 and the Hon'ble Minister for (Electricity andProhibition and Excise) dealt with the remarks on 21.07.2011.Therefore, it is evident that there is a further delay of fourdays in considering and disposing of the representation of thedetenu and there is, totally, nine days delay in considering therepresentation of the detenu. But, there is absolutely noexplanation whatsoever forthcoming from the authoritiesconcerned for such unexplained delay. 8. At this Stage, it is relevant to refer to a fewdecisions of the Honourable Supreme Court and the same areextracted as follows:-“(i) The Hon'ble Apex Court in Rashid sk. v. State ofWest Bengal reported in 1973 (3) SCC 476 has held asfollows:- “The ultimate objective of this provision can only bethe most speedy consideration of his representationby the authorities concerned, for, without itsexpeditious consideration with a sense of urgency thebasic purpose of affording earliest opportunity ofmaking the representation is likely to be defeated.This right to represent and to have therepresentation considered at the earliest flows fromthe constitutional guarantee of the right to personalliberty – the right which is highly cherished in ourRepublic and its protection against arbitrary andunlawful invasion.”(ii) The Honb'le Apex Court in Ram Sukrya Mhatre v.R.D.Tyagi, 1992 Supp (3) SCC 65 held that the rightto representation under Article 22(5) of theConstitution of India includes right to expeditiousdisposal by the State Government. Expedition is therule and delay defeats mandate of Article 22(5) ofthe Constitution of India.(iii) In Aslam Ahmed Zahire Ahmed Shaik v. union ofIndia and others reported in 1989 SCC (Crl) 554 hasheld:-The supine indifference, slackness and callousattitude on the part of the Jail Superintendent whohad unreasonably delayed in transmitting therepresentation as an intermediary, had ultimatelycaused undue delay in the disposal of the appellant'srepresentation by the government which received therepresentation 11 days after it was handed over tothe jail Superintendent by the detenu. Thisavoidable and unexplained delay has resulted inrendering the continued detention of the appellantillegal and constitutionally impermissible........ https://hcservices.ecourts.gov.in/hcservices/ 4When it is emphasised and re-emphasised by a seriesof decisions of the Supreme Court that arepresentation should be considered with reasonableexpedition, it is imperative on the part of everyauthority, whether in merely transmitting or dealingwith it, to discharge that obligation with allreasonable promptness and diligence without givingroom for any complaint of remissness, indifference oravoidable delay because the delay, caused byslackness on the part of any authority, willultimately result in the delay of the disposal of therepresentation which in turn may invalidate the orderof detention as having infringed the mandate ofArticle 22(5).(iv) In Tara Chand v. State of Rajasthan, 1980 (2)SCC 321 and Raghavendra Singh v. Superintendent,District Jail, 1986 (1) SCC 650, the Apex Court heldthat any inordinate and unexplained delay on the partof the Government in considering the representationrenders the detention illegal.(v) In yet another decision of the Hon'ble Apex Courtreported in 1999 (1) SCC 417 (Rajammal v. State ofTamil Nadu), it is held that it is a constitutionalobligation of the Government to consider therepresentation forwarded by the detenu without anydelay. Though no period is prescribed by Article 22of the Constitution for the decision to be taken onthe representation, the words “as soon as may be” inclause (5) of Article 22 convey the message that therepresentation should be considered and disposed ofat the earliest. But that does not mean that theauthority is preempted from explaining any delaywhich would have occasioned in the disposal of therepresentation. The Court can certainly considerwhether the delay was occasioned due to thepermissible reasons or unavoidable causes. If delaywas caused on account of any indifference or lapse inconsidering the representation such delay willadversely affect further detention of the prisoner.In other words, it is for the authority concerned toexplain the delay, if any, in disposing of therepresentation. It is not enough to say that thedelay was very short. Even longer delay can as wellbe explained. So the test is not the duration orrange of delay, but how it is explained by theauthority concerned. Even the reason that theMinister was on tour and hence there was a delay offive days in disposing of the representation wasrejected by the Apex Court holding that when theliberty of a citizen guaranteed under Article 21 ofthe Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient tojustify the delay, since the file could be reached https://hcservices.ecourts.gov.in/hcservices/ 5the Minister with utmost promptitude in casesinvolving the vitally important fundamental right ofa 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 notbe supine indifference, slackness or callous attitudein considering the representation. Any unexplaineddelay in the disposal of the representation would bebreach of the constitutional imperative and it wouldrender the continued detention impermissible andillegal.”9. The right to make a representation against an order ofdetention is not only a constitutional right, but a statutoryright as well. Since the Constitution as also the Actspecifically provide that the detenu shall be given the earliestopportunity of making a representation against the order ofdetention, it is implicit that there is a corresponding duty onthe authorities to whom the representation is made to disposeof the representation at the earliest or else the constitutionaland the statutory obligation to provide the earliest opportunityof making a representation would lost both its purpose andmeaning. The court in a large number of cases, has already laiddown the principle in clear and specific terms that therepresentation has to be disposed of at the earliest and ifthere has been any delay in the disposal of the representation,the reasons for the delay must be indicated to the court or elsethe unexplained delay or unsatisfactory explanation in thedisposal of the representation would totally affect the order ofdetention and in that situation, continued detention wouldbecome bad. 10. This Court has repeatedly held that even theunexplained delay of three days is construed to be fatal to thedetention order in the decision reported in 2007 (2) MWN (Cr.)145 (DB) Sumaiya vs. The Secretary to Government, Prohibitionand Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-9 and another. This court has also held thatthe unexplained delay in the disposal of the representationwould definitely amount to breach of the constitutionalimperative and the same would render a continued detentionimpermissible and illegal. It is well settled that there shouldnot be supine indifference, slackness or callous attitude inconsidering the representation. In the decisions cited supra,the unexplained delay of even three days is held to havevitiated the order of detention. 11. In so far as the case on hand is concerned, we havealready pointed out that there is, totally, unexplained delay ofnine days in considering and disposing of the representation ofthe detenu and as such, the same would vitiate the impugnedorder of detention. It is needless to say that the guarantee ofearliest disposal of the representation set out in Art.22(5) ofthe Constitution of India has been infringed. Therefore, in https://hcservices.ecourts.gov.in/hcservices/ 6view of the above said observations, we are constrained to quashthe impugned order of detention. 12.In the result, this Habeas Corpus Petition is allowed andthe impugned detention order passed by the 2nd respondent inMHS.Confdl.No.18/2011 dated 24.06.2011 is hereby quashed and thedetenu Tamizhan @ Thamilselvan @ Ramaraj is directed to be atliberty forthwith, unless his detention is required inconnection with any other case.Sd/-Assistant Registrar(AS)/True Copy/Sub-Assistant RegistrarTo:1.The District Collector and District Magistrate Tirunelveli District2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-93.The Superintendent, Central Prison, Palayamkottai 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, MaduraiSrcmrl/5c – 11.10.2011 HCP(MD)No.537/201120.09.2011