Malarkodi v. State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.01.2016

CORAM

THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE P.N.PRAKASH H.C.P.No.1944 of 2015 Malarkodi ..

Petitioner Vs.

1.The Secretary to the Government, State of Tamil Nadu, Home, Prohibition & Excise Department, Secretariat, Chennai 600 009.

2.The Commissioner of Police Chennai Police, Vepery, Chennai 600007.

..

Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus calling for the entire records, relating to petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order dated 23.07.2015 on the file of the 2nd respondent herein made in proceedings No.595/2015 and quash the same as illegal and consequently direct the respondents herein to produce the said petitioner's son namely Karthik @ Kathirikka Karthik, son of Ganesan, aged 24 years, before this Court and set the petitioner's son at liberty from detention, now petitioner's son detained at Central Prison, Puzhal, Chennai 600 066.

For Petitioner : Mr.C.C.Chellappan For Respondents : Mr.M.Maharaja, APP

O R D E R

[Order of the Court was made by P.N.PRAKASH, J.] The petitioner herein is the mother of the detenu and she has filed this petition challenging the order of detention passed by the 2nd respondent in No.595/2015 dated 23.07.2015, branding her son as a "Goonda" under 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]. 2.Even though the learned counsel for the petitioner raised many grounds in assailing the impugned order of detention in the petition, he confined his arguments only to the ground of delay in considering the representation of the detenu. According to the learned counsel for the petitioner, the representation of the detenu dated 29.07.2015, has been received by the Government on 05.08.2015 and remarks have been called for from the detaining authority on the same day, i.e., 05.08.2015; but, the remarks have been received by the Government only on 12.08.2015, after a delay of 7 days. He adds that the file was dealt with by the Minister concerned on 14.08.

2015 and the rejection letter was prepared and communicated to the detenu also on the same day, i.e., on 14.08.2015. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 2 intervening holidays and even after giving concession as to the intervening holidays including Government Holidays, still there is a delay of 5 days, which remains unexplained. The unexplained delay in considering the representation of the detenu vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Rajammal Vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.

3.Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 05.08.2015 and that was forwarded to the Detaining Authority, calling for remarks on 05.08.2015 and remarks were received by the Government on 12.08.2015 and ultimately, the representation was considered and rejected on 14.08.2015 and the result of the consideration was communicated to the detenu on the same day, i.e., on 14.08.2015. Therefore, according to the learned Additional Public Prosecutor, there is no inordinate delay in considering the representation of the detenu and therefore, he prayed for dismissal of the petition. 4.We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.

5.As per the Proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu dated 29.07.2015 was received by the Government on 05.08.2015 and remarks have been called for from the detaining authority on the very same day, i.e., 05.08.2015. But, remarks have been received by the Government only on 12.08.2015, i.e., after a delay of 7 days and the case of the detenu was dealt with by the Minister

concerned on 14.08.2015 and the same was rejected on the same day, i.e., on 14.08.2015. From the above, it is clear that in between 05.08.2015 and 12.08.2015, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 7 days. Even if we give concession to the 2 intervening holidays, namely 08.08.2015 and 09.08.2015, still there is a delay of 5 days, which remain unexplained.

6.It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of 5 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.

7.In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows: "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."

8.As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here 5 days delay has not been properly explained at all. 9.Further, in a recent decision in Ummu Sabeena vs. State of Kerala - 2011 STPL (Web) 999 SC, the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

10.In the light of the above fact and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the detenu.

11.Accordingly, the habeas corpus petition is allowed and the detention order passed by the 2nd respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case. Sd/- Asst.Registrar (CS II ) /true copy/ Sub Asst. Registrar AP To 1.The Secretary to the Government, State of Tamil Nadu, Home, Prohibition & Excise Department, Secretariat, Chennai 600 009.

2.The Commissioner of Police Chennai Police, Vepery, Chennai 600007.

3. The Superintendent Central Prison, Puzhal, Chennai

4. The Joint Secretary to Government Public (Law and order) Fort Saint George, Chennai-9 5.The Public Prosecutor High Court, Madras.

H.C.P.No.1944 of 2015 GJ (CO) kk 4/2