High Court Madras High Court

G.Sumathi vs The Secretary To Government on 4 December, 2007

Madras High Court
G.Sumathi vs The Secretary To Government on 4 December, 2007
       

  

  

 
 
           IN THE HIGH COURT OF JUDICATURE AT MADRAS
                              
                      DATED: 04.12.2007
                              
                            CORAM
                              
           THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
                             AND
            THE HONOURABLE MR.JUSTICE R.REGUPATHI
                              
                    H.C.P. No.1319 of 2007
                              



G.Sumathi                   				..Petitioner
                              

          Vs.


1.  The Secretary to Government
    Home, Prohibition & Excise Department
    Fort St.George
    Chennai 9.

2.  The District Collector and District Magistrate
    Villupuram District
    Villupuram.               				..Respondents



PRAYER: Petition filed under Article 226 of the Constitution
of India to issue Habeas Corpus as stated therein.



          For Petitioner  :  Mr.K.Gandhikumar

          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 detenu, son of the petitioner, 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 29.5.2007 was passed

on the basis of ground case that occurred on 30.4.2007 at

about 10.00 a.m. It is stated that on the said day, when one

Saravanan and his friends were having tea, the detenu came

there, started wordy altercation with Saravanan and demanded

money. When Saravanan refused, the detenu took Veecharuval

and threatened to kill him. When Saravanan further refused

to give money, the detenu attacked him with Veecharuval on

his neck and right leg and caused serious injury and

snatched Rs.650/- from Saravanan. When friends of Saravanan

intervened, the detenu picked up soda bottles and hurled the

same against the public. The public who were at the spot

noticing the atrocious activities ran for safer places out

of fear of danger to their lives and properties. On the

same day, the detenu was arrested in connection with three

cases in Crime Nos.251, 323 and 335 of 2007 on the file of

Villupuram Town Police Station.

2.2. The detaining authority also took not of three

adverse cases pending against the detenu, viz., Crime

Nos.520 of 2006, 251 and 323 of 2007 all on the file of

Villupuram Town Police Station for the offences punishable

under Sections 147, 148, 294(b), 341, 323, 324, 506(ii) and

307 IPC read with Section 3 of the Explosive Substances

Act, 1908.

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 mother of the

detenu has come forward with the present Habeas Corpus

Petition seeking a writ of habeas corpus to call for the

records in C2/22763/2007, dated 29.5.2007 on the file of the

second respondent herein, to quash the same as illegal and

to consequently direct the respondents to produce the

detenu, now confined in Central Prison, Cuddalore, 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 29.5.2007. A representation was made

to the Government on 23.8.2007 and the same was received by

it 28.8.2007. Remarks were called for from the detaining

authority on 29.8.2007 and the same was received by the

detaining authority on 7.9.2007. Parawar remarks were

called for from the sponsoring authority on 9.9.2007. But,

parawar remarks of the sponsoring authority were received by

the detaining authority only on 21.9.2007, viz., after a

delay of nine days, excluding three 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. There is

absolutely no explanation for this delay.

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 order 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

29.5.2007 is set aside. The detenu is directed to be set

at liberty forthwith unless his custody is required in

connection with any other case.

sasi

To:

1. The Secretary to Government
State of Tamilnadu
Home, Prohibition and Excise Department
Fort St.George
Chennai 9.

2. The District Collector and District Magistrate
Villupuram District
Villupuram.

3. The Public Prosecutor
High Court
Madras.