IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.01.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1638 of 2007 Madhu ... Petitioner vs. 1. The State of Tamil Nadu, rep. by its Secretary to Govt., Prohibition and Excise Dept., Fort St. George, Chennai-9. 2. The District Collector & District Magistrate, Krishnagiri District, Krishnagiri. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. For Petitioner : M/s.R.Subadra Devi 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 27.10.2007, clamped on the detenu by name Thimmarayan, S/o.Lakshmanan, by the second respondent in S.C.No.33 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 brother-in-law 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 taking two lorry tubes from a bush. On seeing the police, the detenu attempted to escape, but he was arrested and the police secured the lorry tubes, which contained illicit arrack. A case was registered in Krishnagiri Town Police Station Cr.No.1378/2007 under Section 4(1)(aaa) r/w 4(1-A) of the Tamil Nadu Prohibition Act and the detenu was sent to judicial custody. Sample arrack was sent for chemical analysis and the Chemical Analyst has opined that the sample contained atropine, which is poisonous.
3. The detaining authority, taking note of the above ground case as well as three adverse cases of similar nature one on the file of same police station in Crime No.506/2007 and two on the file of Krishnagiri P.E.W. Crime Nos.1181/2007 and 1309/2007 and having arrived at the subjective satisfaction that there is a compelling necessity to detain the detenu in order to prevent her 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 15.11.2007 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 27.10.2007, a representation dated 15.11.2007 was made on behalf of the detenu, which was received by the Government on 16.11.07. Remarks were called for from the detaining authority on 19.11.07, who, in turn, called for parawar remarks from the sponsoring authority on 23.11.2007. But, the sponsoring authority sent the remarks only on 13.12.2007, i.e., after a delay of twenty days, which is not properly explained. Thereafter, the report was sent and received by the Government on 14.12.2007, on which date, the file was circulated and the Under Secretary and the Additional Secretary considered the same. The Minister concerned dealt with the file on 17.12.2007 and rejected it. However, the rejection letter was prepared only on 27.12.2007, here again with a delay of ten days, which is also not explained. On the same day, it was sent to the detenu.
6.2.From the above details, it is evident that there is enormous delay on two occasions, viz., firstly on the side of the sponsoring authority in sending the parawar remarks to the detaining authority and lastly, on the side of the Government in preparing the rejection letter and there is no convincing explanation for the said 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. As already stated, there is inordinate delay both on the part of the Government and on the lower authorities, 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.
(P.D.D.J.)(R.R.J.)
08.01.2008
Internet : Yes/No
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, Krishnagiri District,
Krishnagiri.
3. The Superintendent,
Central Prison, Salem.
4. The Public Prosecutor,
High Court, Madras.
P.D.DINAKARAN,J.
AND
R.REGUPATHI,J.
(sra)
H.C.P.No.1638 of 2007
08.01.2008