Thiru.R.Punniyamurthy @ v. Commissioner Of Police,
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.2258/2017 Punniyamurthy @ Murthy @ Mohan ..
Petitioner vs.
1.The Commissioner of Police Greater Chennai.
2.The Secretary State of Tamil Nadu Prohibition & Excise Department Fort St George, Chennai 600 009.
..
Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the entire records in connection with the order of detention passed by the 1st respondent dated 26.09.2017 in 590/BCDFGISSSV/2017 R.Punniyamurthy @ Murthy @ Mohan, S/o.Ranganathan, Hindu, aged about 35 years, against the petitioner who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty forthwith.
For petitioner : Mr.A.K.Manojkumaar For Respondents : Mr.V.M.R.Rajentren, APP
ORDER
(Order of the Court was made by C.T.SELVAM, J.) Petitioner, detenu herein, has filed this Petition challenging the order of detention passed by the 1st respondent in Memo No.590/BCDFGISSSV/2017, dated 26.09.2017, 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 26.09.2017, 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 S10 Pallikaranai PS Cr.No.1101/2017 457, 380 IPC S7 Madipakkam PS Cr.No.842/2017 457, 380 IPC S10 Pallikaranai PS Cr.No.1659/2017 457, 380 IPC S7 Madipakkam PS Cr.No.849/2017 457, 380 IPC S7 Madipakkam PS Cr.No.850/2017 457, 380 IPC (ii) Ground Case:
Sl No.
Name of the Police station and Crime No.
Section of law S7 Madipakkam PS Cr.No.854/2017 341, 323, 294[b], 392, 397, 427 & 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 22.11.2017. According to the learned counsel for the petitioner, the representation, dated 22.11.2017 has been received by the Government on 23.11.2017 ; the remarks were called on the same day. But the said remarks were received only on 28.11.2017, 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 29.11.2017, the Minster also has dealt with the said file of the detenu only on 15.12.
2017, with a further delay of 16 days and the rejection letter was prepared and sent to the detenu on 18.12.2017. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 6 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 15 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.
the Government received the representation on 23.11.2017 and that was forwarded to the Detaining Authority, calling for remarks on the same day itself and remarks were received by the Government on 28.11.2017 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.
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 22.11.2017 which was received by the Government on 23.11.2017, remarks have been called for from the detaining authority on the same day itself, i.e., on 23.11.2017. But, remarks have been received by the Government only on 28.11.2017 and the case of the detenue was dealt with by the Minister only on 15.12.2017, and thereafter, the representation has been considered by the authorities concerned and rejected only on 18.12.2017 and the Rejection letter was sent to the detenu on 18.12.2017. From the above, it is clear that in between 23.11.2017 and 28.11.2017 [period between remarks called for and remarks received], there is a delay of 5 days and in between 29.11.2017 and 15.12.
2017 [period between the file dealt with by the Under Secretary and the Minister concerned], there is a further delay of 16 days, totalling to 21 days. Even if we give concession to the 6 intervening holidays, namely 25.11.2017 ; 26.11.2017 ; 02.12.2017 ; 03.12.2017 ; 09.12.2017 ; 10.12.2017, still there is a delay of 15 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 15 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 15 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 15 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 1st 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 //True copy// Sub Assistant Registrar AP
To 1.The Commissioner of Police Greater Chennai.
2.The Secretary State of Tamil Nadu Prohibition & Excise Department Fort St George, Chennai 600 009.
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent, Central Prison, Puzhal-II, Chennai.
5.The Joint Secretary to Government, Public (Law and Order), Fort St.George, Chennai-17.
+1cc to MR.A.K.Manoj Kumar, Advocate SR.No.15137 H.C.P.No.2258/2017 GP(CO) GN(28/03/2018)