Tmt.Vijayanalini v. State Represented By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.01.2018

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2227/2017 Tmt.Vijayanalini ..

Petitioner vs.

State represented by 1.The Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The Commissioner of Police Greater Chennai, Chennai.

..

Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records relating to the order of detention No.691/BCDFGISSSV/2017 dated 04.11.2017 passed by the 2nd respondent and to quash the same and also to direct the detenu Thiru Subramani Rajiv @ Raju, S/o.Tamilvanan, who is presently detained in the Central Prison, Puzhal, Chennai to be produced before this Court and set at liberty. For petitioner : Mr.M.V.Kalaichithram For RR1 & 2 : Mr.V.M.R.Rajentren, APP

O R D E R

(Order of the Court was made by C.T.SELVAM, J.) Petitioner, mother of the detenu, Subramani Rajiv @ Raju, son of Tamilvanan, has filed this Petition challenging the order of detention passed by the 2nd respondent in Memo NO.691/BCDFGISSSV/2017 dated 04.11.2017, branding the detenu 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].

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 20.11.2017. According to the learned counsel for the petitioner, the representation, dated 20.11.2017 has been received by the Government on 22.11.2017 and though the remarks were called ; the said remarks were received only on 27.11.2017, after a delay of 5 days. He adds that though the file was

submitted to the Under Secretary on the next day, i.e., on 28.11.2017, the Minster has dealt with the said file of the detenu only on 15.12.2017, with a further delay of 17 days and the rejection letter was prepared and sent to the detenu on 18.12.2017, with yet another delay of 3 days. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 8 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 17 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.

3.Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 22.11.2017 and that was forwarded to the Detaining Authority, calling for remarks and remarks were received by the Government on 27.11.2017 and ultimately, the representation was considered and rejected on 18.12.2017 and the

result of the consideration was communicated to the detenue on 18.12.2017 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.

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 20.11.2017 which was received by the Government on 22.11.2017, remarks have been called for from the detaining authority and the same have been received by the Government only on 27.11.2017 and the case of the detenue was dealt with by the Minister only on 15.12.2017, i.e., after a total delay of 25 days and thereafter, the representation has been considered by the authorities concerned and rejected on 18.12.2017. From the above, it is clear that in between 22.11.2017 and 27.11.2017 [period between remarks called for and remarks received], there is a delay of 5 days and in between 28.11.2017 and 18.12.2017 [i.e., the period between the file submitted to the Department concerned ;

dealing of the same by the Minister and passing of the rejection letter], there is a further delay of 20 days. Even if we give concession to the 8 intervening holidays, namely 25.11.2017 ; 26.11.2017 ; 02.12.2017 ; 03.12.2017 ; 09.12.2017 ; 10.12.2017 ; 16.12.2017 and 17.12.2017, still there is a delay of 17 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 17 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 detenue without any delay.

"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 17 days delay has not been properly explained at all.

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 the inordinate delay of 17 days in total, has not been properly explained at all. 10.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.

11.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. 12.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.] 24.01.2018 AP To 1.The Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The Commissioner of Police Greater Chennai, Chennai.

3.The Public Prosecutor, High Court, Madras.

4.The Superintendent, Puzhal, Chennai.

C.T.SELVAM, J., AND N.SATHISH KUMAR, J.

AP H.C.P.No.2227/2017 24.01.2018