IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.1.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1603 of 2007 C.Babu .. Petitioner Vs. 1. The State of Tamilnadu rep. by the Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9. 2. The District Collector and District Magistrate Krishnagiri District Krishnagiri. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Ms.R.Subadra Devi For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R
(Order of the Court was made by P.D.DINAKARAN,J.)
The second respondent herein clamped an order of detention as against the friend of the petitioner Bethatti Kolla Ramu @ Anand, as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda and he has to be detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).
2.1. The order of detention dated 8.8.2007 was passed on the basis of the ground case in Crime No.648 of 2007 under Section 392 IPC on the file of Kaveripattinam Police Station, complaint of which was given by one Chandran, who caught the detenu with the help of the public and produced him in the police station. According to the complainant, on 11.7.2007 at about 6.00 a.m., when he was returning home after walk, the detenu waylaid him at knife point and took Rs.350/- from his pocket. The detenu tried to snatch the wrist watch of the complainant and as the complainant resisted, the detenu stabbed him and caused blood injuries in his right hand. Hearing the hue and cry of the complainant, the public, who came to the spot, attempted to catch the detenu, but the detenu threatened them showing knife. Subsequently, more public came to the spot, surrounded the detenu and apprehended him. Based on the said complaint, the detenu was arrested and remanded.
2.2. The detaining authority also took note of eleven adverse cases pending against the detenu, viz., Crime No.112 of 2006 on the file of Uthanapalli Police Station for the offence punishable under Section 392 IPC; Crime Nos.111 and 112 of 2007 on the file of Kaveripattinam Police Station for the offence punishable under Section 397 IPC; Crime No.59 of 2007 on the file of Pennagaram Police Station for the offence punishable under Section 397 IPC; Crime No.13 of 2007 on the file of Kelamangalam Police Station for the offence punishable under Section 394 IPC; Crime No.59 of 2007 on the file of Pappireddipatti Police Station for the offence punishable under Sections 457 and 395 IPC; Crime No.66 of 2007 on the file of Kadathur Police Station for the offence punishable under Sections 448 and 395 IPC; Crime Nos.51 and 52 of 2007 on the file of Morappur Police Station for the offence punishable under Sections 448 and 395 IPC; Crime No.50 of 2007 on the file of Bagalur Police Station for the offence punishable under Section 379 IPC; and Crime No.49 of 2007 on the file of Kandhikuppam Police Station for the offence punishable under Section 392 IPC.
2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order, passed the impugned order.
3. Challenging the said detention, the friend of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the entire records leading to the detention of the detenu, vide detention order dated 8.8.2007 on the file of the second respondent made in proceedings S.C.No.20 of 2007, to quash the same and to consequently direct the respondents to produce the body and person of the said detenu before this Court and to set him at liberty.
4. Heard the learned counsel for the petitioner and Mr.N.R.Elango, learned Additional Public Prosecutor for the respondents.
5. The only contention advanced by the learned counsel for the petitioner is that there is considerable delay in considering the representation and the same has rendered the detention illegal.
6.1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point.
6.2. 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 .
6.3. 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.
6.4. 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.
6.5. 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.
7. In the instant case, the impugned order of detention came to be passed on 8.8.2007. A representation was made to the Government on 14.9.2007 and the same was received by it 20.9.2007. Remarks were called for from the detaining authority on 20.9.2007 and the said representation was received by the detaining authority on 23.9.2007. Parawar remarks were called for from the sponsoring authority by the detaining authority on 24.9.2007. But, the remarks of the sponsoring authority were received by the detaining authority only on 8.10.2007, viz., after a delay of nine days, excluding five public holidays. The delay, 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.
8. 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.
9. 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 .
The delay which stands unexplained is fatal to the detention attracting Article 22 of the Constitution of India and therefore, the petition must succeed and the same is ordered as prayed for. The detention order dated 8.8.2007 is set aside. The detenu is directed to be set at
liberty forthwith unless his custody is required in connection with any other case.
Index : Yes/No
Internet : Yes/No
1. The Secretary to Government
State of Tamilnadu
Home, Prohibition and Excise Department
Fort St.George, Chennai 9.
2. The Commissioner of Police
3. The Public Prosecutor
High Court, Madras.
H.C.P.No.1603 of 2007