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.9 of 2008 R.Chinnapappa ... Petitioner vs. 1. The State, Rep. by its Secretary to Govt., Dept. of Prohibition and Excise, Secretariat, 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 : Mr.G.Pugazhenthi 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 29.11.2007, clamped on the detenu by name Raja, by the second respondent in S.C.No.35 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 the basis of the complaint lodged by one Kuppan before the Sub-Inspector of Police, Kaveripattinam Police Station, that on 3.11.2007 at about 8.00 a.m., after returning from his personal work, he went to the detenu and consumed the illicit arrack he sold and that after consuming the same, he felt irritation in throat, eyes, giddiness and also vomitted and he suspected that some poisonous substance would have mixed in the arrack, a case was registered in Kaveripattanam P.S. Crime No.1107 of 2007 under Sections 4(1)(i) r/w 4(1-A) of the Tamil Nadu Prohibition Act, 1937, against the detenu and during the course of investigation, the detenu was arrested and remanded to judicial custody. The sample arrack seized from the detenu, was sent for chemical analysis and the report revealed that the arrack was admixed with 5.8 mg. Of Atropine, which is a poisonous substance.
3. The detaining authority, taking note of the above ground case as well as four adverse cases of similar nature on the file of same police station in Crime Nos.402/2005, 938/2006, 274/2007 and 551/2007 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 non- consideration of the representation dated 22.12.2007 made on behalf of the detenu objecting to the order of detention.
5. Heard the learned Additional Public Prosecutor on the above point.
6. Admittedly, in the case on hand, objecting to the order of detention dated 29.11.2007, a representation dated 22.12.2007 was made on behalf of the detenu and the same was received by the Government on 31.12.2007. Remarks were called for from the detaining authority on 2.1.2008 and since the remarks were not received, a reminder was sent on 10.1.2008. But, still, a perusal of the materials placed before us shows that the remarks were yet to be received by the Government from the detaining authority. This shows the laxity on the part of the detaining authority in responding to the communication sent by the Government. The learned Additional Public Prosecutor also is not in a position to substantiate that the representation was considered by the authorities concerned. Under such circumstances, as rightly pointed out by the learned counsel for the petitioner, we are constrained to hold that the representation made on behalf of the detenu objecting to the order of detention was not at all considered by the Government, which has the effect of vitiating the order of detention.
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, the non-consideration of the representation made on behalf of the detenu, as referred to above, in our considered opinion, has rendered the order of detention illegal and hence, the petition must 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.)
14.02.2008
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.9 of 2008
14.02.2008