IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2007
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
H.C.P. No.848 of 2007
Lavanya alias Shakila ..Petitioner
Vs.
1. The State of Tamil Nadu
rep. by its Secretary to Government
Prohibition and Excise Department
Fort St.George
Chennai 9.
2. The Commissioner of Police
Greater Chennai
Egmore
Chennai 8. ..Respondents
PRAYER:
Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein.
For Petitioner : Mr.S.Swamidoss Manokaran
For Respondents : Mr.P.Kumaresan, Addl. Public Prosecutor
O R D E R
(Order of the Court was made by P.D.DINAKARAN,J.)
The petitioner is the wife of the detenu Ramesh @ Teeka Ramesh, son of Subramani. The detenu was incarcerated by order dated 23.3.2007 of the second respondent under the provisions of the Tamil Nadu 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 of 1982) branding him as a Goonda. Hence, the petitioner seeks a writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent dated 23.3.2007 in Memo No.111/BDFGISSV/2007 against her husband, who is now confined at Central Prison, Chennai, to set aside the same and to direct the respondents to produce the above said detenu before this Court and set him at liberty.
2. According to the detaining authority, viz., the second respondent, the ground case is said to have taken place on 14.3.2007 at about 8.50 hours. On receipt of reliable information, in respect of Crime No.35/2007 on the file of N2 Kasimedu Police Station for the offences punishable under Sections 341, 323, 384 and 506(ii) IPC, the police personnel surrounded the detenu and his associates standing at the junction of Kodimara Salai and Sheik Maistry Street. When they went near to apprehend them, the detenu and two others pushed the Head Constable on the round and one Chandru strangulated the neck of the Head Constable. Pandian, the Sub Inspector of Police and his party caught hold of the said Chandru and saved the Head Constable. The said Chandru Pushed the police personnel and picked up soda bottles from the nearby shop and hurled the same against them. The bottles fell on the road, broken into pieces and the broken pieces scattered all over the road. The public and the shopkeepers ran here and there fearing danger to their lives and properties. By their action, the detenu and his associates created panic. With the help of public, the police personnel arrested the detenu and others and remanded them to judicial custody. In this regard, a case was registered in Crime No.42/2007 for the offences punishable under Sections 147, 148, 332, 427, 336, 307 and 506(ii) IPC.
3. The second respondent, taking note of the above case as a ground case and finding that there are three adverse cases pending against the detenu and having satisfied that there is a compelling necessity to detain him in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order, ordered his detention dubbing him as a Goonda.
4. Since the learned counsel for the petitioner assailed the order of detention mainly on the ground of delay in considering the representation of the detenu, we do not propose to go into the other aspects, as the said ground of belated consideration of the representation has to succeed. According to the learned counsel, there was a delay in preparing the rejection letter, which vitiates the order of the detention.
5.1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point.
5.2. Article 22(5) of the Constitution of India suggests that the obligation of the government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according 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 the Constitution of India includes right to expeditious disposal by the State Government. 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 the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.
5.5. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words as soon as may be in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. If delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. 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 the duration or range of delay, but how it is explained by the authority concerned. Even the reason that the Minister was on tour and hence there was a delay of five days in disposing of the representation was rejected by the Apex Court holding that when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved, the absence of the Minister at head quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.
6. In the case on hand, the impugned order of detention came to be passed on 23.3.2007. A representation was made on behalf of the detenu on 7.6.2007 to the Government, which was received on 14.6.2007. Remarks were called for from the detaining authority on 15.6.2007, who in turn, called for parawar remarks from the sponsoring authority on 19.6.2007 and on receipt of the same by the Government on 26.6.2007, the file was circulated on 27.6.2007 and the Under Secretary and the Additional Secretary dealt with the file on 27.6.2007 and on 28.6.2007, the Minister concerned rejected the same. It is contended that even though the Minister concerned rejected the representation of the detenu on 28.6.2007, the rejection letter was prepared only on 5.7.2007 and in the absence of convincing reply on behalf of the State, the order of detention vitiates. We find some force in the contention of the learned counsel. Even excluding the intervening public holidays viz., 30.6.2007 and 1.7.2007 (Saturday and Sunday), there is a delay of five days in preparing the rejection letter.
7. At this juncture, a reference to the decision of the Apex Court 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 over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the liberty and freedom to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest.
8. That apart, it is a settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476.
9. In the instant case, admittedly, there is a delay of five days in preparing the rejection letter and in the absence of valid explanation for the said delay, in our considered opinion, the same vitiates the order of detention. We are, therefore, inclined to allow this petition. Accordingly, the order of detention dated 23.3.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
ATR
To:
1. The Secretary to Government
Prohibition and Excise Department
Fort St.George
Chennai 9.
2. The Commissioner of Police
Greater Chennai
Egmore
Chennai .
3. The Superintendent
Central Prison
Puzhal
Chennai.
4. The Public Prosecutor
High Court
Madras.