A.Selvakumar v. The State Rep. By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18-02-2016

CORAM

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN HABEAS CORPUS PETITION No.2149 of 2015 A.Selvakumar .. Petitioner / Brother of the detenue vs 1.State represented by The Commissioner of Police Chennai District, Chennai 2.The Secretary to Government Government of Tamilnadu Home, Prohibition and Excise IX Department Secretariat, Fort St. George Chennai 600 009 .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records of the first respondent in T.P.D.A. : 6886 (Detention order BCDFGISSSV No.685/2015 dated 3.8.2015), setting aside the same and directing the respondents to produce the detenu by name Thavamani @ Navamani, aged about 30 years, son of Arputhamani, before this Court, now detained in Central Prison, Puzhal.

For Petitioner : Mr.T.Padmanabhan For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor

ORDER

(Order of the Court was made by S.NAGAMUTHU, J.) This Habeas Corpus Petition has been filed by the brother of the detenu, namely, Thavamani @ Navamani, aged 30 years, son of Arputhamani, to issue a Writ of Habeas Corpus, to call for the records in BCDFGISSSV No.685/2015, dated 3.8.2015, passed by the first respondent, detaining the detenu, 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 14/1982), branding him as a "Goonda", and to quash the same and to direct the respondents to produce the body and person of the detenu and set him at liberty.

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 made by the petitioner on behalf of the detenu. According to the learned counsel for the petitioner, the representation has been received by the Government on 31.8.2015, and remarks have been called for from the detaining authority on 1.9.2015. However, the remarks have been received by the Government only on 3.11.2015, after a delay of 62 days. He adds that the file was dealt with by the Minister concerned on 15.11.2015, and the rejection letter was communicated to the detenu on 20.11.2015.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 23 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 39 days, which remain unexplained. The unexplained delay in considering the representation 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, the learned Additional Public Prosecutor had submitted that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. The learned Additional Public Prosecutor had further submitted that there was no deliberate delay on the part of the authorities concerned to consider and dispose of the representation of the petitioner. It is contended that such a delay is not fatal to the impugned detention order, as the authorities concerned are dealing with the file right from the date of receipt of the representation 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, the representation of the petitioner was received by the Government on 31.8.2015, and remarks have been called for from the detaining authority on 1.9.2015. However, remarks have been received by the Government only on 3.11.2015, i.e., after a delay of 62 days and the case of the detenu was dealt with by the Minister concerned on 15.11.2015, and the same was rejected on 18.11.2015. From the above, it is clear that in between 1.9.2015 and 3.11.2015, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 62 days. Even if we give concession to the 23 intervening holidays including Government

holidays, namely 5.9.2015, 6.9.2015, 12.9.2015, 13.9.2015, 17.9.2015, 19.9.2015, 20.9.2015, 24.9.2015, 26.9.2015, 27.9.2015, 2.10.2015, 3.10.2015, 4.10.2015, 10.10.2015, 11.10.2015, 17.10.2015, 18.10.2015, 21.10.2015, 22.10.2015, 24.10.2015, 25.10.2015, 31.10.2015 and 1.11.2015, still there is a delay of 39 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 39 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 39 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 petitioner.

11. Accordingly, the habeas corpus petition is allowed and the detention order dated 3.8.2015, passed by the first 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 III ) /true copy/ Sub Asst. Registrar nsv To:

1.The Commissioner of Police Chennai District, Chennai 2.The Secretary to Government Government of Tamilnadu Home, Prohibition and Excise IX Department Secretariat, Fort St. George Chennai 600 009

3. The Joint Secretary to Government Public (Law and order) Fort St. George Chennai-9

4. The Public Prosecutor High Court, Madras

5. The Superintendent Central Prison, Puzhal, Chennai HCP No.2149 of 2015 ALA (CO) kk 3/3