IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.02.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.5 of 2008 Anjalai ... Petitioner vs. 1. State, rep. by Secretary to Govt., Prohibition and Excise Dept., Secretariat, Chennai-9. 2. The District Collector & District Magistrate, Kancheepuram District, Kancheepuram. ... Respondents PRAYER: 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.N.R.Elango Additional Public Prosecutor ORDER
(Order of this Court was made by P.D.DINAKARAN,J.)
The order of detention dated 12.12.2007, clamped on the detenu by name Kannaiyan @ Punderikhan, by the second respondent in B.D.F.G.I.S.S.V.No.79 of 2007, branding him as a Bootlegger under Section 3(1) 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), is being challenged in this writ petition by the wife of the detenu.
2. On 12.10.2007 at 14.30 hours, when the Inspector of Police and his police party were on their routine raids, they found the detenu handing over a plastic can having 10 litres of capacity to a person near the lake bund of Karikanthangal Colony. On seeing the police, the other person escaped and when the detenu attempted to escape, he was arrested and the police secured the plastic can, which contained rectified spirit. The police also seized three plastic cans containing 35 litres of rectified spirit. A case was registered in Chithamur Police Station Cr.No.286/2007 under Section 4(1)(i), 4(1-A), 4(1)(aaa) of the Tamil Nadu Prohibition Act r/w 6 & 11 of RS Rules 2000 and the detenu was sent to judicial custody. Samples of rectified spirit were sent for chemical analysis and the Chemical Analyst has opined that the samples contained 8.2%, 8.3% and 8.4% mg. w/v of atropine, which is poisonous.
3. The detaining authority, taking note of the above ground case as well as seven adverse cases of similar nature one on the file of same police station in Crime Nos.63/2005, 125/2005, 196/2005, 215/2005, 222/2006, 155/2007 and 193/2007 and having arrived at the subjective satisfaction that there is a compelling necessity to detain the detenu in order to prevent him from indulging in the 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 in considering the representation dated 28.12.2007 made on behalf of the detenu. Hence, we do not propose to go into other aspects of the case, as the said ground has to succeed.
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.
6.1. Coming to the case on hand, admittedly, objecting to the order of detention dated 12.12.2007, a representation dated 28.12.2007 was made on behalf of the detenu, which was received by the Government on 31.12.07. Remarks were called for from the detaining authority on 2.11.08 and the same were received by the Government only on 14.1.2008, i.e. after a delay of 12 days. Even after receipt of the same, the file was circulated on 8.2.2008, after a delay of 25 days. The above said delay, which remained explained, was highlighted by the learned counsel for the petitioner. Thereafter, on 8.2.2008, the file was considered by the Under Secretary and Additional Secretary and the Minister concerned considered the same on 11.2.2008 and rejected it. The rejection letter was prepared on 12.2.2008 and it was sent to the detenu on 13.2.2008.
6.2.From the above details, it is evident that there is enormous delay on two occasions, viz., firstly, delay of 12 days on the side of the detaining authority in sending the remarks to the detaining authority and secondly, delay of 25 days on the side of the Government in circulating the file for consideration of the authorities concerned, even after the receipt of the remarks from the detaining authority. There is no convincing explanation for the above said delay on the side of the Government.
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. As already stated, there is inordinate delay in considering the representation made on behalf of the detenu, as referred to above, which, in our considered opinion, has rendered the order of detention illegal and hence, the petition has to succeed on this ground. Accordingly, the order of detention is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
sra
To:
1. The Secretary to Government,
Prohibition and Excise Department,
Government of Tamilnadu,
Fort St. George, Chennai-9.
2. The District Collector & District
Magistrate, Kancheepuram District,
Kancheepuram.
3. The Superintendent,
Central Prison, Chennai.
4. The Public Prosecutor,
High Court,
Madras.