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Sathiya @ Sathiyanathan vs The State Of Tamil Nadu on 29 October, 2007

Madras High Court
Sathiya @ Sathiyanathan vs The State Of Tamil Nadu on 29 October, 2007
       

  

  

 
 
           IN THE HIGH COURT OF JUDICATURE AT MADRAS
                              
                      DATED : 29.10.2007
                              
                            CORAM
                              
           THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
                             AND
            THE HONOURABLE MR.JUSTICE R.REGUPATHI
                              
                    H.C.P. No.913 of 2007
                              



Sathiya @ Sathiyanathan  				..Petitioner


           Vs

                              
1. The State of Tamil Nadu 
   rep. by its Secretary  to Government
   Home, Prohibition and Excise Department
   Fort St.George
   Chennai 600 009.

2. The District Magistrate and District Collector
   Vellore District at
   Vellore. 						..Respondents




     Petition filed under Article 226 of the Constitution of
India for issue of Writ of Habeas Corpus as stated therein.



          For Petitioner  :   Mr.T.R.Radhakrishnan

          For Respondents :   Mr.N.R.Elango, Addl. Public Prosecutor




                          O R D E R

(Made by P.D.DINAKARAN,J.)

The petitioner, aggrieved by the order of detention

dated 22.5.2007 made in Ref.No.C3.D.O.No.41/2007 passed by

the second 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) to detain him,

branding him as a Goonda, seeks to quash the order of

detention and to direct the respondents to produce him, who

is now confined at Central Prison, Vellore before this Court

and set him at liberty.

2. On the basis of a complaint lodged by one Sivakumar

that on 11.4.2007 at about 7.30 hours, the detenu waylaid

him at the point of pen knife and forcibly took Rs.150/-

from his shirt pocket and Wester wrist watch from his left

hand, and also threatened the public who came for his rescue

that they would be killed and hurled the bottles taken from

the nearby bunk shop in the road, which scattered all over

the roadside, making them to run on all sides seeking

shelter, which resulted in traffic dislocation, the detenu

was arrested and a case was registered in Crime No.221/2007

on the file of Arcot Town Police Station, for the offence

punishable under Sections 341, 392, 397, 427 and 506(ii),

IPC.

3. The second respondent, taking note of the above case

as a ground case and twelve adverse case, ordered his

detention dubbing him as a goonda.

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. In the instant case, admittedly, objecting to the

order of detention dated 22.5.2007, a representation was

made on behalf of the detenu to the detaining authority on

22.6.2007, which was received by the Government on

26.6.2007. Parawar remarks from the sponsoring authority on

27.6.2007 and on receipt of the same on 4.7.2007, the

detaining authority sent it to the Government on 11.7.2007

and the same was received on the same day itself.

Thereafter, the file was submitted on 12.7.2007 and the same

was considered by the Under Secretary and Additional

Secretary on 13.7.2007. The file was considered by the

Minister on 16.7.2007. However, the rejection letter was

prepared on 25.7.2007, after a delay of nine 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 seven days in preparing the order

of rejection, is admittedly unexplained and inexcusable.

Thereafter, the order of rejection was sent on 25.7.2007 and

served on the detenu on 28.7.2007.

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 seven days in

preparing the order of rejection on the detenu, 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 impugned 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.

kpl

To

1. The Secretary to Government
Prohibition & Excise Department
Secretariat
Chennai 9.

2. The District Magistrate and District Collector
Vellore District @ Vellore.

3. The Superintendent of Central Prison
Vellore.

4. The Public Prosecutor
High Court
Madras.

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