IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.11.2007
CORAM:
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
Habeas Corpus Petition No.1070 of 2007
Mallika .. Petitioner
Vs
1. The District Collector
and District Magistrate,
Villupuram District, Villupuram.
2. The Secretary to Government.,
Home, Prohibition and Excise Dept.,
Fort St. George, Chennai. .. 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.A.Thamizharasan
For Respondents: Mr.N.R.Elango
Additional Public Prosecutor
ORDER
(Order of the Court was made by P.D.DINAKARAN,J.)
The petitioner, wife of the detenu by name K.Singaravel, who was incarcerated at Central Prison, Cuddalore, by an order dated 30.5.2007 of the first respondent 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 him as a Bootlegger, seeks a writ of Habeas Corpus to call for the records in connection with the order of detention dated 30.5.2007 passed in C2/23170/2007, to set aside the same and to direct the respondents to produce the detenu before this Court and set him at liberty.
2. On 16.5.2007, while conducting prohibition raid by the police attached to Prohibition Enforcement Wing, Kallakurichi, incharge of Tindivanam, the detenu was found selling illicit arrack containing atropine of 3.47 mg. W/V as per chemical analysis report. A case was registered in Crime No.648/2007 on the file of Tindivanam Prohibition Enforcement Wing for offences punishable under Section 4(1-A), 4(1)(aaa) and 4(1)(i) of the Tamil Nadu Prohibition Act. The detenu was arrested and produced before the Judicial Magistrate, Gingee, for judicial remand.
3. The first respondent, taking note of the above case as a ground case and finding that there are five adverse cases of alike nature on the file of Ananthapuram police station in Crime Nos.91/2005, 215/2005, 52/2006, 65/2006 and 4/2007, 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 preparing the rejection order.
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 30.5.2007, a representation was made on behalf of the detenu on 28.6.2007, which was received by the Government on 2.7.2007. Remarks were called for from the detaining authority on 3.7.2007, who, in turn, called for parawar remarks from the sponsoring authority on 5.7.2007 and on receipt of the same by the detaining authority on 6.7.2007, it was sent to Government on 9.7.2007, which was received on 13.7.2007. Thereafter, the file was submitted on 17.7.2007 and on the same day, it was considered by the Under Secretary and the Additional Secretary. The Minister concerned dealt with the file on 18.7.2007 and rejected the same. However, the rejection letter was prepared on 25.7.2007, after a delay of seven days, which is not properly explained. Even taking note of the intervening holidays, viz., 21.7.2007 and 22.7.2007 (being Saturday and Sunday), the delay of five days in preparing the order of rejection, is admittedly unexplained and inexcusable. Thereafter, the order of rejection was sent on 26.7.2007 and served on the detenu on 27.7.2007.
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. In the instant case, there is delay of five days on the part of the sponsoring authority in sending the parawar remarks to the detaining authority, as referred to above, and the same, in our considered opinion, vitiates the impugned order of detention. We are, therefore, inclined to allow this petition.
In the result, the order of detention is set aside. 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.)
05.11.2007
Internet : Yes
sra
P.D.DINAKARAN,J.
AND
R.REGUPATHI,J.
(sra)
To:
1. The Secretary to Government
of Tamil Nadu, Home, Prohibition and
Excise Department, Fort St. George,
Chennai 600 009.
2. The District Magistrate
and District Collector
Villupuram District, Villupuram.
3. The Superintendent
Central Prison, Cuddalore.
4. The Public Prosecutor,
High Court, Madras.
H.C.P.No.1070 of 2007
05.11.2007