Tmt.Indhumathi, Aged 22 Years, v. The Secretary To Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:14.02.2018
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2382/2017 Indhumathi .. Petitioner vs.
1.The State of Tamil Nadu rep.by the Secretary, Home, Prohibition & Excise Department Secretariat, Chennai-600 009.
2.The District Collector & District Magistrate Office of the District Collector and District Magistrate of Vellore District, Vellore-9 .. 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 detention order in C.3.D.O.No.116/2017 dated 03.11.2017 passed by the 2nd respondent and set aside the same and direct the respondent to produce the petitioner's son Marimuthu S/o.Kannan, aged about 27 years the detenu now confined in Central Prison, Vellore, before this Court and set the petitioner's son Marimuthu S/o.Kannan, aged about 27 years the detenu herein at liberty.
For petitioner : Mr.G.M.Shankar For RR1 & 2 : Mr.V.M.R.Rajentren, APP
ORDER
(Order of the Court was made by C.T.SELVAM, J.) Petitioner is the wife of the detenu, who has been branded as a "Goonda" under the Tamil Nadu Act 14 of 1982 and detained under order of the second respondent passed in C3/D.O.No.116/2017 dated 03.11.2017.
2. The alleged ground case has been registered against the detenu on 05.10.2017, by the Walajapet Police Station, in Crime No.541 of 2017 for offences under Sections 379,430,353 and 307 I.P.C r/w Sec.21(5) Mines and Minierals (Development and Regulation) Act 1957. Aggrieved by the order of detention, the present Habeas Corpus petition has been filed.
3.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 08.12.2017. According to the learned counsel for the petitioner, the representation, dated 08.12.2017 has been received by the Government on 11.12.2017; the remarks were called and received on 26.12.2017, after a delay of 15 days. He adds that though the file was submitted to the Under Secretary on the next day, i.e., on 27.12.2017, the Minister has dealt with the said file of the detenu only on 12.01.2018, with a further delay of 16 days and the rejection letter was prepared and sent to the detenu on the same day.
It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 12 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 23 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.Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 08.12.2017 and that was forwarded to the Detaining Authority, calling for remarks on the same day itself and remarks were received by the Government on 26.12.2017 and ultimately, the representation was considered and rejected on 12.01.2018 and the result of the consideration was communicated to the detenu on 12.01.2018 itself. Therefore, according to the learned Additional Public Prosecutor, there is no inordinate delay in considering the representation of the detenu 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 08.12.2017 which was received by the Government on 11.12.2017, remarks have been called for from the detaining authority on the same day itself, i.e., on 11.12.2017. But, remarks have been received by the Government only on 26.12.2017 and the case of the detenu was dealt with by the Minister only on 12.01.2017, i.e., after a total delay of 16 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 the same day. From the above, it is clear that in between 11.12.2017 and
26.12.2017 [period between remarks called for and remarks received], there is a delay of 15 days and in between 27.12.2018 and 12.01.2018 [i.e., the period between the file submitted to the Department concerned and dealing of the same by the Minister], there is a further delay of 16 days. Even if we give concession to the 12 intervening holidays, still there is a delay of 23 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 23 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 23 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 7 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 detenu, 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 IX) //True Copy// Sub Assistant Registrar To 1.The Secretary State of Tamil Nadu Home, Prohibition & Excise Department Secretariat, Chennai-600 009.
2.The District Collector & District Magistrate Office of the District Collector and District Magistrate, Vellore district Vellore-9 3.The Public Prosecutor, High Court, Madras.
4.The Superintendent, Central Prison, Vellore.
5.The Joint Secretary to Government Public (Law & Order) Fort St. George, Chennai -9 +1cc to Mr.G.M.Shankar, Advocate Sr.No.11626 GP(CO) sm:28.3.2018 H.C.P.No.2382/2017