R.Suresh v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.02.2016

CORAM

THE HONOURABLE DR.JUSTICE S.TAMILVANAN and THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN H.C.P.No.2252/2015 R.Suresh .. Petitioner vs.

1.State rep. by Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009.

2.The District Collector and District Magistrate, Tiruvannamalai, Tiruvannamalai District.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus calling for the records in Memo No.D.O.No.47/2015-C2 passed by the second respondent on 24.08.2015 and set aside the same and direct the respondents to produce the detenu Shanmugam, Son of Kandeepa Gounder, aged about 43 years, who is now detained in Central Prison, Vellore-2, before this Court and set him at liberty. For petitioner : Mr.S.Swamidoss Manokaran For respondents: Mr.A.N.Thambidurai, APP

O R D E R

(Order of the Court made by S.TAMILVANAN, J.) The petitioner, who is the friend of the detenu Shanmugam, son of Kandeepa Gounder, aged about 43 years, has filed this petition challenging the order of detention passed by the 2nd respondent in Memo No.D.O.No.47/2015-C2 dated 24.08.2015, branding the detenu as a "Bootlegger" 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, dated 04.09.2015. According to the learned counsel for the petitioner, the representation dated 04.09.2015, has been received by the Government on 08.09.2015; the remarks were called on 09.09.2015. But the said remarks were received only on 23.09.2015; after a delay of fourteen days. He adds that though the file was submitted to the Under Secretary on 25.09.2015, the Minster has dealt with the said file of the detenu only on 08.10.2015, with a further delay of thirteen days and the rejection letter was sent to the detenu only on 09.10.2015.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were five intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of nine 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 08.09.2015 and that was forwarded to the Detaining Authority, calling for remarks on 09.09.2015 and remarks were received by the Government on 23.09.2015 and ultimately, the representation was considered and rejected on 08.10.2015 and the result of the consideration was communicated to the detenu on 09.10.2015. 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 04.09.2015 which was received by the Government on 08.09.2015, remarks have been called for from the detaining authority on 09.09.2015. But, remarks have been received by the Government only on 23.09.2015 and the case of the detenu was dealt with by the Minister only on 08.10.2015, i.e., after a delay of fifteen days and thereafter, the representation has been considered by the authorities concerned and rejected on the same day i.e. on

08.10.2015. From the above, it is clear that in between 09.09.2015 and 23.09.2015, there is a delay of fourteen days. Even if we give concession to the five intervening holidays, namely 12.09.2015, 13.09.2015, 17.09.2015, 19.09.2015 and 20.09.2015, still there is a delay of nine 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 nine 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 Hon'ble 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 nine 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 Hon'ble 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 /true copy/ Sub Asst. Registrar vga To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009.

2.The District Collector and District Magistrate, Tiruvannamalai, Tiruvannamalai District.

3.The Superintendent of Central Prison, Vellore-2.

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

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