IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 7.1.2008
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
H.C.P.No.1490 of 2007
Sumathi .. Petitioner
Vs.
1. The State of Tamil Nadu
rep. by its Secretary to Government
Prohibition & Excise Department
Secretariat, Fort St.George
Chennai-9.
2. The District Collector and
District Magistrate
Villupuram District
Villupuram. .. Respondents
-----
Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein.
-----
For Petitioner : Mr.E.Kannadasan
For Respondents : Mr.N.R.Elango
Addl. Public Prosecutor
-----
O R D E R
(Made by P.D.DINAKARAN,J.)
The second respondent herein clamped an order of detention as against the detenu Ramakrishnan, son of Arumuga Gounder, aged about 37 years, as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda and has to be detained under the provisions 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 detention order was passed on the basis of the ground case in Crime No.692 of 2007 on the file of Valavanur Police Station for the offence punishable under Section 397, IPC, complaint of which was given by one Prakash. On 25.8.2007, the complainant was proceeding to Arpisampalayam in the motor cycle belonging to one Chezhian, along with his friend Murugan. Near Salayampalayam junction, he stopped the vehicle to attend nature call. At that time, the detenu, who was coming along with his associate in a car, halted the same, got down from the car and took away the motor cycle. When the complainant rushed to stop the detenu, the person who accompanied the detenu, took out a knife and threatened him to part with the money and took away Rs.500/- from his pocket. When he tried to prevent the detenu and his associate from taking away the motor cycle, they attempted to stab him and he sustained injury on his left hand while trying to ward off the same. As the vehicles in the highway stopped and the public tried to catch the detenu and his associate, the detenu and his associate threatened them with knife and fled away from the scene of occurrence in the motor cycle. Due to the atrocities, traffic came to standstill.
2.2. Apart from the above, the detaining authority also took note of four adverse case pending against the detenu, viz., Crime Nos.7/2006, 8/2006, 9/2006, 226/2006 and 245/2007 on the file of Kandamangalam Police Station for the offence under Sections 420 and 379, IPC.
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 wife of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records relating to the detention order in proceedings No.C2/40757/2007, dated 17.9.2007 passed by the second respondent herein, to quash the same and to direct the respondent to produce the detenu, now detained in Central Prison, Cuddalore and set him at liberty.
4. The only contention advanced by the learned counsel for the petitioner is that there is a considerable delay in considering the representation and the same has rendered the detention illegal.
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, the impugned order of detention came to be passed on 17.9.2007. A representation was made to the Government on 9.10.2007 and the same was received by it 12.10.2007. Remarks were called for from the detaining authority on 15.10.2007, which was received by the detaining authority on 18.10.2007 itself. The detaining authority, in turn, called for parawar remarks from the sponsoring authority on 19.10.2007 and the same was received on 2.11.2007, with a delay of ten days, excluding four public holidays. The detaining authority sent it to the Government on 4.11.2007, which was received by the Government on 12.11.2007. The file was circulated on 13.11.2007 and the same was considered by the Additional Secretary on 14.11.2007 and the Hon’ble Minister on 15.11.2007. However, the rejection order was prepared on 21.11.2007 with a delay of four days, excluding two public holidays. The delay in considering the representation, 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 the 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. 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. Consequently, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case.
Index : Yes/No (P.D.D.J.) (R.R.J.)
Internet : Yes/No 7.1.2008
kpl
To
1. The Secretary to Government
Home, Prohibition and Excise Department
Fort St.George, Chennai 9.
2. The Commissioner of Police
Chennai Police, Egmore, Chennai 600 008.
3. The Superintendent of Central Prison
Central Prison, Cuddalore.
4. The Public Prosecutor
High Court, Madras.
kpl
P.D.DINAKARAN, J,
AND
R.REGUPATHI, J.
H.C.P.No.1490 of 2007.
7.1.2008.