BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/01/2005 CORAM: THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE S.ASHOK KUMAR H.C.P (MD)No. 117 of 2004 V.Lakshmikanthan .. Petitioner Vs. 1. The Commissioner of Police, Madurai City, Madurai. 2. The Secretary to Government Government of Tamil Nadu Prohibition and Excise Department, Secretariat, Chennai-9 .. Respondents
Habeas Corpus Petition has been filed to issue a writ of Habeas Corpus
calling for the records of the first respondent in No.67/BDFGIS/04, setting
aside the order of detention passed therein dated 25.9.2004, directing the
respondents to produce the detenu by name Masilamani @ Manikandan,
S/o.Lakshmikanthan, now detained in Central Prison, Madurai and set him at
liberty.
!For petitioner … Mr.A.K.Azhagarsami
^For respondents … Mr.Chellapandian, APP
:oRDER
(Order of the Court was made by P.D.DINAKARAN,J.,)
The challenge in this writ petition is to the order of detention passed
by the first respondent dated 25.9.2004 against one Masilamani @ Manikandan
(hereinafter referred as the “detenu”) branding him as a “Goonda” and directing
preventive detention under Section 3(1) of the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Drug Offenders. Forest Offenders, Goondas,
Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of
1982).
2. The only point that is pressed into service by Mr.A.K.Azhagarsami,
learned counsel appearing for the petitioner, is that the detenu’s
representation dated “nil”, received on 25.10.2004, has not been dealt with the
usual and required alacrity and it has been disposed of in a most lethargic and
delayed manner.
3. The learned counsel appearing for the petitioner submitted that the
representation dated “nil” was received by the Government on 25.10.2004 and
remarks were called for from the detaining authority on the same day. The said
representation reached the detaining authority on 28.10.2004 and the detaining
authority in turn called for para-wise remarks from the Sponsoring Authority on
29.10.2004, and the Sponsoring Authority submitted his remarks on 2.11.2004,
which has been received by the Government on 4.11.2004. Even though the file has
been put up along with the remarks on 5.11.2004 and the same has been considered
by the Under Secretary and Deputy Secretary, on the same day, and afterwards
placed before the concerned Minister on 8.11.2004, the Minister has considered
and passed orders only on 16.11.2004, namely, after 9 days.
4. Thus, as seen from the records, we find there is an unexplained delay
between 8.11.2004 and 16.11.2004. Even considering 13th and 14th of November
2004 happened to be Government Holidays, being Saturday and Sunday, there is a
delay of 7 days. The learned Additional Public Prosecutor is not in a position
to explain the said delay. It is obvious that requirement laid down by the
Constitution has not been satisfied in this case. The detenu is entitled to
receive a consideration of his representation by the State Government as
expeditiously as possible which the Government failed to do so, and consequently
his continuance in detention thereafter is illegal. The right to to make
representation against the order of detention is not only a constitutional
right but a statutory right as well. Since the Constitution as also the Act
specifically provide that the detenu shall be given the earliest opportunity of
making a representation against the order of detention, it is implicit that
there is a corresponding duty on the authorities to whom the representation is
made to dispose of the representation at the earliest or else the constitutional
and the statutory obligation to provide the earliest opportunity of making a
representation would lose both its purpose and meaning. By this delay there is
an infraction of the Constitutional right guaranteed to a detenu under Article
22 of the Constitution of India, which vitiates the order of detention.
5. In the result, the Habeas Corpus Petition is allowed. The order of
detention dated 25.9.2004 is set aside. The detenu is directed to be set at
liberty forthwith unless he is required in connection with any other case.
To
1. The Commissioner of Police,
Madurai City,
Madurai.
2. The Secretary to Government,
Prohibition and Excise Department,
Fort St. George,
Chennai -9.
3. The superintendent,
Central Prison,
Madurai.
4. The Joint Secretaryto Government,
Public (Law and Order)
Fort St. George,
Chennai -9.
5. The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.