IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.12.2007
CORAM:
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
Habeas Corpus Petition No.1294 of 2007
Subramaniam .. Petitioner
Vs
1. State, rep. by its Secretary to Govt.,
Prohibition and Excise Dept.,
Secretariate, Chennai.
2. The District Collector
and District Magistrate,
Villupuram District, Villupuram. .. Respondents
Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein.
For Petitioner : Mr.S.Swamidoss Manokaran
For Respondents: Mr.P.Kumaresan
Additional Public Prosecutor
ORDER
(Order of the Court was made by P.D.DINAKARAN,J.)
The petitioner, cousin brother of the detenu, by name Ramar, who was detained at Central Prison, Cuddalore, by an order dated 29.5.2007 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 Bootlegger, seeks a writ of Habeas Corpus to call for the records in connection with the order of detention passed in C2/22762/2007, to set aside the same and to direct the respondents to produce him before this Court and set him at liberty.
2.Facts which led to the passing of the detention order is as follows :-
“On 13.05.2007 at 11.00 hours, while conducting prohibition raid at Arasampattu Village, the Inspector of Police, Kallakurichi, Incharge of Tirukoilur Prohibition Enforcement Wing found the detenu selling illicit arrack. On seeking the police party, persons who had come there to consume the illicit arrack escaped, and the detenu was arrested and on the basis of confession statement given by him, a case in Cr.No.601/2007 was registered for offences under Section 4(1)(i) 4(1)(aaa) and 4(1-A) II of the Tamil Nadu Prohibition Act. The samples of illicit arrack seized were sent for Chemical Analysis and each sample was found admixed with 3.47 mgs of atropine”.
3.The second respondent, taking note of the above ground case and finding that the detenu came to the adverse notice of the authorities in five cases of alike nature on the file of same police station, viz., in Crime Nos.185/2006, 414/2006, 727/2006, 36/2007 and Cr.No.419/2007, having satisfied that there is compelling necessity to detain the detenu in order to prevent him from indulging in such activities, which are prejudicial to the maintenance of public order and public health, ordered his detention dubbing him as a Bootlegger.
4. The learned counsel for the petitioner challenges the impugned order of detention only on the ground of delay on the part of the sponsoring authority in sending the parawar remarks to the detaining authority, while considering the representation made on behalf of the detenu. Hence, we do not propose to go into other aspects of the case.
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.Coming to the case on hand, admittedly, objecting to the order of detention dated 29.5.2007, a representation dated nil was made on behalf of the detenu, which was received by the Government on 12.7.2007. Remarks were called for from the detaining authority on 12.7.2007, and on receipt of the same, parawar remarks were called from the sponsoring authority on 18.7.2007. The Sponsoring Authority has submitted his remarks only on 26.07.2007, after a delay of eight days. Even excluding the intervening public holidays, viz. 21.7.2007 and 22.7.2007 (being Saturday and Sunday), the delay of six days is admittedly unexplained and hence, inexcusable. Thereafter, it was sent to the Government on 27.07.2007 and the same was received by Government on 1.8.2007. The file was submitted on 2.8.2007 and it was considered by the Under Secretary and the Additional Secretary on the same day. The Minister concerned dealt with the file on 3.8.2007 and rejected the same. The rejection letter was prepared and sent on 8.8.2007 and the same was served to the detenu on 11.08.2007.
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, there is delay of six days on the part of the sponsoring authority in sending the parawar remarks, as referred to above, and the same, in our considered opinion, vitiates the impugned order of detention. We are, therefore, inclined to allow this petition.
In the result, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
(P.D.D.J.)(R.R.J.)
05.12.2007
Internet : Yes
sra
To:
1. The Secretary to Government
of Tamil Nadu, Prohibition and
Excise Department, Fort St. George,
Chennai 600 009.
2. The District Collector
and District Magistrate,
Villupuram District,
Villupuram.
3. The Superintendent
Central Prison, Cuddalore.
4. The Public Prosecutor,
High Court, Madras.
P.D.DINAKARAN,J.
AND
R.REGUPATHI,J.
(sra)
H.C.P.No.1294 of 2007
05.12.2007