Yogesh v. State Of Tamilnadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2015
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE P.N.PRAKASH H.C.P.No.2702 of 2015 Yogesh ..Petitioner Vs.
1.The Secretary to Government State of Tamil Nadu, Home, Prohibition & Excise Department, Secretariat, Chennai-9.
2.The District Collector and District Magistrate, Tiruvannamalai District, Tiruvannamalai. .. 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 petitionr's friend detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 28.04.2015 on the file of the 2nd respondent herein made proceedings D.O.No.24/2015-C2 and quash the same as illegal and consequently direct the respondents herein to produce the said petitioner's friend namely Saravanan @ Elango @ Aravindh, S/o.Kanniyappan, aged 32 years before this High Court and set the petitioner's friend at liberty from detention, now petitioner's friend detained at Central Prison, Vellore.
For Petitioner : Mr.C.C.Chellappan For RR1 & 2 : Mr.M.Maharaja, APP
O R D E R
(Order of the Court was made by R.SUDHAKAR, J.) The petitioner herein who is the friend of the detenue, has filed this Petition challenging the order of detention passed by the 2nd respondent in D.O.No.24/2015-C2 dated 28.04.2015, branding his friend as a "Goonda" under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law
offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual 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 12.10.2015. According to the learned counsel for the petitioner, the representation, dated 12.10.2015, has been received by the Government on 14.10.2015 and remarks have been called for from the detaining authority on the next day i.e., on 15.10.2015; but, the remarks have been received by the Government only on 28.10.2015, after a delay of 13 days.
He adds that the file was dealt with by the Minister concerned on 11.11.2015 with a further delay of 11 days, from the date on which the Deputy Secretary has dealt with the same on 30.10.2015 and the rejection letter was prepared on 12.11.2015. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 14 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 12 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 12.10.2015 and that was forwarded to the Detaining Authority, calling for remarks on 15.10.2015 and remarks were received by the Government only on 28.10.2015 and ultimately, the representation was considered and rejected on 12.11.2015 and the result of the consideration was communicated to the detenu on the same day. 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 12.10.2015, which was received by the Government on 14.10.2015 and remarks have been called for from the detaining authority on the next day i.e., on 15.10.2015. But, remarks have been
received by the Government only on 28.10.2015, i.e., after a delay of 13 days and though the case of the detenu was dealt with by the Deputy Secretary on 30.10.2015, the Minister has dealt with the same only on 11.11.2015 with a further delay of 11 days and thereafter, the same was rejected on 12.11.2015. From the above, it is clear that in between 15.10.2015 and 28.10.2015, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 13 days; and in between 30.10.2015 and 11.11.2015, [i.e, the intermittent days between the file dealt with by the Deputy Secretary and the Minister concerned], there is a further delay of 11 days. Even if we give concession to the 12 intervening holidays including Government holidays, namely 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 12 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 12 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 12 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 dated 28.04.2015, 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/- Assistant Registrar(CS-III) True Copy Sub Assistant Registrar To 1.The Secretary to Government State of Tamil Nadu, Home, Prohibition & Excise Department, Secretariat, Chennai-9.
2.The District Collector and District Magistrate, Tiruvannamalai District, Tiruvannamalai.
3.The Superintendent, Central Prison, Vellore.
4. The Joint Secretary to Government, Public (Law & Order) Department, Secretariat, Chennai-9.
5.The Public Prosecutor, High Court, Madras.
H.C.P.No.2702 of 2015 ppa[co] srg 04/01/2016