Ammasi (M/35) v. The State Represented By Its
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.02.2018
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2151/2017 Ammasi ..
Petitioner vs.
1.The State rep .by its Secretary to Government, [Home], Prohibition & Excise Department Government of Tamil Nadu Fort St George, Chennai 600 009.
2.The District Magistrate & District Collector Namakkal District.
.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records pertaining to the order of detention dated 24.10.2017 passed by the 2nd respondent in CMP.No.13/Goonda/2017/M1 and quash the same and produce the detenu Elumalai, son of Mahalingam, aged about 27 years, has been detained at Central Prison, Salem before this Court and set him at liberty.
For petitioner : Dr.S.Manoharan For RR1 & 2 : Mr.V.M.R.Rajentren, APP
ORDER
(Order of the Court was made by C.T.SELVAM, J.) Petitioner, mother of the detenu herein, viz., Elumalai, son of Mahalingam, aged 27 years, has filed this Petition challenging the order of detention passed by the 2nd respondent in CMP.No.13/Goonda/2017/M1, dated 24.10.2017, branding him 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 24.10.2017, passed by the second respondent, the detenu came to adverse notice in the following cases:
i)Adverse case:
Sl No.
Name of the Police station and Crime No.
Section of law Tiruchengode Town PS.
Cr.No.14/2016 302 IPC @ 147, 148,341, 302, 120[b] IPC Tiruchengode Town PS Cr.No.521/2017 294[b], 341, 324, 307 IPC
(ii) Ground Case:
Sl No.
Name of the Police station and Crime No.
Section of law Tiruchengode Town PS Cr.No.539/2017 341, 395 read with 397 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 11.11.2017. According to the learned counsel for the petitioner, the representation dated 11.11.2017 has been received by the Government on 14.11.2017 ; the remarks were called on the same day. But the said remarks were received only on 07.12.2017, after a delay of 23 days. He adds that though the file was submitted to the Under Secretary on the next day, i.e., on 08.12.2017, and the Minster has dealt with the said file of the detenu only on 15.12.
2017, with a further delay of 7 days and the rejection letter was prepared on 18.12.2017 and sent to the detenu on 19.12.2017.
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.
Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 14.11.2017 and that was forwarded to the Detaining Authority, calling for remarks on the same day itself and remarks were received by the Government on 07.12.2017 and ultimately, the representation was considered and rejected on 1812.2017 and the result of the consideration was communicated to the detenue on 19.12.2017 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.
We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.
As per the Proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu dated 14.11.2017 which was received by the Government on 14.11.2017, remarks have been called for from the detaining authority on the same day itself, i.e., on 14.11.2017. But, remarks have been received by the Government only on 07.12.2017 and the case of the detenue was dealt with by the Minister on 15.12.2017 and thereafter, the representation has been considered by the authorities concerned and rejected on 18.12.2017 and the Rejection letter was sent to the detenu on 19.12.2017, with a total delay of 30 days. From the above, it is clear that in between 14.11.2017 and 07.12.2017 [period between remarks called for and remarks received], there is a delay of 23 days and in between 08.12.2017 and 15.12.2017 [i.e.
, the period between the file dealt with by the Under Secretary and the Minister], there is a further delay of 7 days. Even if we give concession to the 8 intervening holidays, namely 18.11.2017 ; 19.11.2017 ; 25.11.2017 ; 26.11.2017 ; 02.12.2017 ; 03.12.2017 ; 09.12.2017 and 10.12.
days, which remain unexplained.
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 22 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu. 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."
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 22 days delay has not been properly explained at all.
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 22 days in total, has not been properly explained at all. 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. 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.
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.
[C.T.S., J.] [N.S.K., J.] 27.02.2018 AP
To 1.The Secretary to Government, [Home], Prohibition & Excise Department Government of Tamil Nadu Fort St George, Chennai 600 009.
2.The District Magistrate & District Collector Namakkal District.
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent, Central Prison, Salem.
C.T.SELVAM, J., AND N.SATHISH KUMAR, J.
AP H.C.P.No.2151/2017 27.02.2018