IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 7.1.2008
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
H.C.P.No.1595 of 2007
Prakash .. Petitioner
Vs.
1. The State of Tamil Nadu
rep. by its Secretary
Prohibition and Excise Department
Secretariat, Chennai 600 009.
2. The District Collector and
District Magistrate,
Tiruvellore District. .. Respondents
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Petition under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus as stated therein.
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For Petitioner : Mr.T.Muniratnam Naidu
For Respondents : Mr.N.R.Elango
Additional Public Prosecutor
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O R D E R
(Made by P.D.DINAKARAN,J.)
The petitioner, who is the son of the detenue, Kala, who has been detained at Women Prison, Puzhal, pursuant to the order of detention dated 27.9.2007 passed 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 her as a Bootlegger, has filed this writ petition for issue of a Writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent in B.D.F.G.I.S.S.V.No.17/2007, to set aside the same and to direct the respondents to produce the above said detenue before this Court and set her at liberty.
2. On 16.9.2007, the Inspector of Police, Tiruvallur Taluk Police Station, along with his police party, proceeded on a prohibition raid. At that time, he found one person giving money to a woman, who, in turn, poured some liquid into a plastic tumbler from the mud pot and gave it to the person. On seeing the police party, the said person who came to consume arrack escaped from that place. The detenu was arrested and a case was registered in crime No.458/2007 under Sections 4(1)(i) read with 4(1-A) of the Tamil Nadu Prohibition Act. The chemical analysis report of the samples taken from the arrack seized from the detenu disclosed that the arrack contained atropine of 8.3 mg per 100 ml.
3. The second respondent, taking note of the above case as a ground case and finding that there are five adverse cases, viz. Crime Nos.34/2006, 118/2006, 357/2006 and 306/2007 on the file of Tiruvalluvar Prohibition Enforcement Wing and Crime No.77/2007 on the file of Tiruvallur Taluk Police Station, for the offence under Sections 4(1)(aa), 4(1)(aa) read with 4(1-A), 4(1)(i) read with 4(1-A) and 4(1)(aaa) read with 4(1-A) of the Tamil Nadu Prohibition Act, ordered her detention dubbing as a bootlegger.
4. The learned counsel for the petitioner challenges the impugned order of detention mainly on the ground of delay in considering the representation made on behalf of the detenu. Hence, we do not propose to go into the 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 27.9.2007, a representation was made on behalf of the detenu on 9.10.2007, which was received by the Government on 26.10.2007. Remarks were called for from the detaining authority on 29.10.2007 and the same was received from the detaining authority on 12.11.2007. The file was circulated on 13.11.2007 and the same was considered by the Under Secretary and the Additional Secretary on 14.11.2007 and the Hon’ble Minister on 15.11.2007. However, the rejection order was prepared on 21.11.2007 with a delay of four days, excluding two public holidays and sent to the detenu on 22.11.2007. The delay in considering the representation, as indicated above, was highlighted by the learned counsel for the petitioner. There is no convincing reply on behalf of the State for the said delay. We find some force as well as substance in this contention. There is absolutely no explanation for the delay.
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. The delay which stands unexplained is fatal to the detention order attracting Article 22 of the Constitution of India and therefore, the petition must succeed and the same is ordered as prayed for. Accordingly, the order of detention is set aside. The detenue is directed to be set at liberty forthwith unless her custody is required in connection with any other case.
(P.D.D.J.) (R.R.J.)
7.1.2008.
kpl
To
1. The District Collector and District Magistrate,
Tiruvellore District.
2. The Secretary to the Government
Prohibition and Excise Department
Secretariat, Chennai 600 009.
3. The Superintendent
Women Prison, Puzhal, Chennai.
4. The Public Prosecutor
High Court, Madras.
kpl
P.D.DINAKARAN,J,
and
R.REGUPATHI,J.
HCP No.1595 of 2007.
7.1.2008.