Jamiludeen, 58 Yrs, v. State Of Tamilnadu Rep.By Its,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.03.2018
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.18/2018 Jamiludeen ..
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 Greater Chennai Police, Vepery, Chennai-600 007.
..
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 order under Tamil Nadu Act 14 of 1982 vide detention order dated 12.12.2017 on the file of the 2nd respondent herein made in proceedings No.771/BCDFGISSSV/2017 and quash the same as illegal and consequently direct the respondents herein to produce the said petitioner's son namely Syed Irfan, son of Jamiludeen aged 36 years, before this Court and set the petitioner's son at liberty from detention, now petitioner's son detained at Central Prison-II, Puzhal, Chennai 00 066.
For Petitioner : Mr.C.C.Chellappan For RR1 & 2 : Mr.R.Prathap Kumar, APP
ORDER
(Order of the Court was made by C.T.SELVAM, J.) Petitioner, father of the detenu herein, has filed this Petition challenging the order of detention passed by the 2nd respondent in No.771/BCDFGISSSV/2017 dated 12.12.2017, branding his son as a "Goonda" as contemplated u/s.2[f] of 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].
As per the grounds of detention dated 12.12.2017, passed by the second respondent, the detenu came to adverse notice in the following cases:
Adverse Case:
Sl No.
Name of the Police station and Crime No.
Section of law T10 Thirumullaivoyal PS Cr.No.2198/2017 379 IPC T15 SRMC PS Cr.No.1749/2017 379 IPC T6 Avadi PS Cr.No.1524/2017 379 IPC T12 Poonamallee PS Cr.No.1648/2017 379 IPC Ground Case:
Sl No.
Name of the Police station and Crime No.
Section of law T13 Kundrathur PS Cr.No.216/2017 341, 294[b], 336, 427, 397 and 506[ii] IPC 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 22.12.2017 According to the learned counsel for the petitioner, the representation, dated 22.12.2017, has been received by the Government on 27.12.2017 ; the remarks were called on the same day, i.e., 27.12.2017. But the said remarks were received only on 03.01.2018, after a delay of 7 days. He adds that though the file was submitted to the Under Secretary on 04.01.2018, the Minister has dealt with the said file of the detenu only on 12.01.
2018, with a further delay of 8 days and the rejection letter was prepared on 12.01.2018 and sent to the detenu on the same day, i.e., on 12.01.2018. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 5 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 10 days in considering the representation, 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. 4.
petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 27.12.2017 and that was forwarded to the Detaining Authority, calling for remarks on the same day itself and remarks were received by the Government on 03.01.2018 and ultimately, the representation was considered and rejected on 12.01.2018 and the result of the consideration was communicated to the detenue on 12.01.2018 itself. Therefore, according to the learned Additional Public Prosecutor, there is no inordinate delay in considering the representation of the detenue and therefore, he prayed for dismissal of the petition.
5.We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.
6.As per the Proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu, dated 22.12.2017 which was received by the Government on 27.12.2017, remarks have been called for from the detaining authority on the same day itself, i.e., on 27.12.2017. But, remarks have been received by the Government only on 03.01.2018 and the case of the detenue was dealt with by the Minister on 12.01.2018, i.e., after a total delay of 15 days and thereafter, the representation has been considered by the authorities concerned and rejected on 12.01.2018 and the Rejection letter was sent to the detenu on 12.01.2018. From the above, it is clear that in between 27.12.2017 and 03.01.2018 [period between remarks called for and remarks received] there is a delay of 7 days and between 04.01.2018 and 12.01.
2018 [period between the file dealt with the Under Secretary and the Minister concerned] there is a further delay of 8 days. Even if we give concession to the intervening holidays, namely 30.12.2017 ; 31.12.2017 ; 01.01.2018 ; 06.01.2018 and 07.01.2018, still there is a delay of 10 days, which remain unexplained.
7.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 10 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.
8.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 detenue 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."
9..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 10 days delay has not been properly explained at all. 10.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 the inordinate delay of 10 days in total, has not been properly explained at all.
11.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 detenue, should be considered and disposed of with a sense of urgency and without any avoidable delay.
12.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.
13.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/- Assistant Registrar(CS IV) //True copy// Sub Assistant 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 Greater Chennai Police, Vepery, Chennai-600 007.
3.The Superintendent, Central Prison, Puzhal, Chennai.
4. The Joint Secretary to government, Public (Law and Order), Fort St.George, Chennai.
5.The Public Prosecutor, High Court, Madras.
H.C.P.No.18/2018 KJI(CO) GN(09/04/2018)