Ramya v. State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.03.2016 Coram:

THE HON'BLE MR.JUSTICE S.NAGAMUTHU and THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN H.C.P.No.2489 of 2015 Ramya .. Petitioner vs.

1.State of Tamilnadu rep. by the Secretary Home, Prohibition and Excise Department Fort St. George Chennai-600 009.

2.The Commissioner of Police The Commissioner Office Vepery Chennai-600 007.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, to call for the records relating to the impugned detention order in No.959/BCDFGISSSV/2015, dated 18.09.2015, on the file of the second respondent and set aside the same as illegal and to direct the respondents to produce the petitioner's aunty Meena, W/o.Pandian, aged about 32 years, who is now confined at Special Prison for Women, Puzhal, Chennai, before this Court and to set her at liberty.

For Petitioner : Mr.G.B.Motcham For Respondents : Mr.A.N.Thambidurai Addl. Public Prosecutor

O R D E R

[Order of the Court was made by S.NAGAMUTHU, J.] This Habeas Corpus Petition has been filed by the niece of the detenue to issue a Writ of Habeas Corpus, to call for the records relating to the impugned order passed by the 2nd respondent in No.959/BCDFGISSSV/2015, dated 08.09.2015, detaining the

detenue, namely, Meena, W/o.Pandian, aged about 32 years, under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982), branding her as a "Drug Offender" as contemplated u/s.2(e) of the Tamil Nadu Act 14 of 1982, and to quash the same and to direct the respondents to produce the body and person of the detenue and to set her at liberty.

2. Even though, Mr.G.B.Motcham, 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 detenue. According to the learned counsel for the petitioner, the representation of the detenue has been received by the Government on 28.09.2015 and remarks have been called for from the detaining authority on the same day, viz., on 28.09.2015. However, the remarks have been received by the Government only on 12.11.2015, after a delay of 45 days. He adds that the file was dealt with by the Minister concerned on 15.11.2015 and the rejection letter was prepared on 18.11.2015.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 17 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 28 days, which remains unexplained. The unexplained delay in considering the representation of the detenue 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, Mr.A.N.Thambidurai, 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 detenue. 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 detenue was received

by the Government on 28.09.2015 and remarks have been called for from the detaining authority on 28.09.2015. However, the remarks have been received by the Government only on 12.11.2015, after a delay of 45 days and the case of the detenue 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 28.09.2015 and 12.11.2015, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 45 days. Even if we give concession to the 17 intervening holidays viz., 02.10.2015, 03.10.2015, 04.10.2015, 10.10.2015, 11.10.2015, 17.10.2015, 18.10.2015, 21.10.2015, 22.10.2015, 23.10.2015, 24.10.2015, 25.10.2015, 31.10.2015, 01.11.2015, 07.11.2015, 08.11.2015 and 10.11.2015, still there is a delay of 28 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 28 days. Therefore, we have to hold that the delay has vitiated further detention of the detenue.

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 28 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 detenue.

11. Accordingly, the habeas corpus petition is allowed and the detention order dated 08.09.2015, passed by the 2nd respondent is quashed. The detenue is directed to be set at liberty, forthwith, unless her presence is required in connection with any other case.

Sd/- Asst.Registrar (CS VII ) /true copy/ Sub Asst. Registrar paa To 1.The Secretary to Government Government of Tamilnadu Home, Prohibition and Excise Department Fort St. George Chennai-600 009.

2.The Commissioner of Police The Commissioner Office Vepery Chennai-600 007.

3. The Superintendent Special Prison for women Puzhal, Chennai

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

H.C.P.No. 2489 of 2015 CTK (CO) kk 15/4