Santhiya v. The Government Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.03.2015
CORAM:
THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI HCP No.2704 of 2014 Santhiya ..
Petitioner Vs 1.Government of Tamil Nadu rep. by its Principal Secretary, Home Prohibition and Excise (XVI) Department, Fort St. George, Chennai 600 009.
2.The Commissioner of Police, Coimbatore City.
..
Respondents Prayer:- This Habeas Corpus Petition is filed, under Article 226 of the Constitution of India for the relief as stated therein pleased to issue a writ of Habeas Corpus, calling for the records in C.No.36/G/IS/2014 dt.23.9.14 on the file of the 2nd respondent herein and quash the same and direct the Respondents herein to produce the body of the petitioner's husband Thiru M.Karthick, aged 24 years Son of Muralikannan, now confined in Central Prison, Coimbatore before this Court and set him and liberty. For Petitioner :
Mr.B.Namiselvan For Respondents :
Mr.C.Emalias, APP
ORDER
This Habeas Corpus Petition is filed, by the wife of the detenu, namely, M.Karthick, aged 24 years, son of Muralikannan, to issue a Writ of Habeas Corpus, to call for the records in C.No.36/G/IS/2014 dated 23.9.2014, passed by the 2nd Respondent, detaining the detenu, under Section 3(1) of 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 14/1982)the Tamil Nadu Act 14 of 1982, branding him as a "Goonda", in the Central Prison, Coimbatore and to quash the same and to direct the Respondents to produce the body and person of the detenu and set him at liberty forthwith.
2. Mr.B.Nambiselvan, learned counsel for the petitioner has assailed the impugned detention order on the ground that there is unexplained delay in considering and disposing of the representation of the detenu, which would vitiate the impugned
detention order. In support of his contentions, the learned counsel for the petitioner placed reliance on the decision of this Court reported in 2007-2-MWN-Cr-145-DB (Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another).
3. Per contra, Mr.C.Emalias, learned Additional Public Prosecutor would submit that there is no illegality or infirmity in the impugned order of detention. The learned Additional Public Prosecutor would submit that six intermittent holidays intervened, which has resulted in the delay in considering the representation and that there was no deliberate delay on the part of the authorities concerned to consider and dispose of the representation of the detenu. 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 remarks.
4. We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and also perused the impugned order of detention and the materials placed on record.
5. At the outset, it is to be stated by this Court that there is an unexplained delay in considering and disposing of the representation of the detenu. The perusal of the proforma produced by the learned Additional Public Prosecutor would reveal that the detenu sent his representation dated 15.10.2014 and the same was received by the Government on 20.10.2014. Though remarks were called for on 21.10.2014, the same was received only on 3.11.2014. Thereafter, the file was submitted to the Under Secretary and the Deputy Secretary on 3.11.2014 and the Hon'ble Minister for (Electricity and Prohibition and Excise) has dealt with the said file of the detenu on 6.11.2014 and the rejection letter was prepared on 6.11.2014 and the rejection letter was sent to the detenu on 7.11.2014. Therefore, it is evident that in between 21.10.2014 and 3.11.
2014, there is a delay of sixteen days in considering and disposing of the representation of the detenu. After giving concession of six intervening Government holidays, still there is a delay of ten days, which remain unexplained. But, there is absolutely no explanation whatsoever forthcoming from the authorities concerned for such unexplained delay.
6. At this Stage, it is relevant to refer to a few decisions of the Honourable Supreme Court and the same are extracted as follows:- "(i) The Hon'ble Apex Court in Rashid sk. v. State of West Bengal reported in 1973 (3) SCC 476 has held as follows:- "The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of
the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion."
(ii) The Honb'le Apex Court in Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65 held that the right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India.
(iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 has held:- The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. .......
When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5).
(iv) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650, the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.
(v) In yet another decision of the Hon'ble Apex Court reported in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu), it is held that 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. But that does not mean that the authority is preempted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to the permissible reasons or unavoidable causes. If delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation.
It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. Even the reason that the Minister was on tour and hence there was a delay of five days in disposing of the representation was rejected by the Apex Court holding that when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved, the absence of the Minister at head quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.
(vi) In K.M.Abdulla Kunni v. Union of India, 1991 (1) SCC 476, it is held as follows:- "That part, it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal."
7. The right to make a representation against an order of detention is not only a constitutional right, but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lost both its purpose and meaning. The court, in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory
explanation in the disposal of the representation would totally affect the order of detention and in that situation, continued detention would become bad.
8. This Court has repeatedly held that even the unexplained delay of three days is construed to be fatal to the detention order. In the decision reported in 2007-2-MWN-Cr.-145-DB (Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another), this court has also held that the unexplained delay in the disposal of the representation would definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. It is well settled that there should not be supine indifference, slackness or callous attitude in considering the representation. In the decisions cited supra, the unexplained delay of even three days is held to have vitiated the order of detention.
9. In so far as the case on hand is concerned, we have already pointed out that there is, totally, unexplained delay of ten days in considering and disposing of the representation of the detenu and as such, the same would vitiate the impugned order of detention. It is needless to say that the guarantee of earliest disposal of the representation set out in Article 22(5) of the Constitution of India has been infringed. Therefore, in the light of the above said principles laid down by the Honourable Supreme Court and this Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.
10. In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.
Sd/- Assistant Registrar True Copy Sub Assistant Registrar To:
1.The Principal Secretary, Home Prohibition and Excise (XVI) Department, Secretariat, Chennai 600 009.
2.The Commissioner of Police, Coimbatore City. 3.The Superintendent, Central Prison,Coimbatore. 4.The JOint Secretary to Government Public (L&O) Fort St.George, Chennai.
5.The Public Prosecutor, Madras High Court, Madras br(co) krd 23/4 HCP.No.2704/2014