Pushpavathi,32 Yrs, v. The Secretary To Governemnt,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 09.03.2018

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2413/2017 Pushpavathi .. Petitioner vs.

1.The Secretary to Government Home, Prohibition & Excise Department Secretariat, Fort St George, Chennai-600 009. 2.The Commissioner of Police/Detaining Authority City Police Office, Huzur Road, Coimbatore City, Coimbatore-18.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the entire records relating to the petitioner's husband detention under Tamil Nadu Act 14 of 1982 vide detention order dated 01.12.2017 on the file of the 2nd respondent herein made in proceedings Memo C.No.73/G/IS/2017 quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely P.Rajendran son of Palanisamy aged 44 years before this Court and set the petitioner's husband at liberty. From Central Prison, Coimbatore.

For Petitioner : Mr.W.Camyles Gandhi For Respondents: Mr.R.Prathap Kumar, APP

ORDER

(Order of the Court was made by C.T.SELVAM, J.) Petitioner, wife of detenu herein, has filed this Petition challenging the order of detention passed by the 2nd respondent in C.No.73/G/IS/2017 dated 01.12.2017, branding her husband as a "Drug Offender" as contemplated u/s.2[e] 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 01.12.2017, passed by the second respondent, the detenu came to adverse notice in the following cases:

Adverse Case:

Sl No.

Name of the Police station and Crime No.

Section of law Coimbatore NIBCID Cr.No.97/2015 8[c] r/w 20[b][ii][B] NDPS Act 1985 Coimbatore NIBCID Cr.No.129/2016 8[c] r/w 20[b][ii][B] & 25 NDPS Act 1985 Coimbatore City E2 Peelamedu PS Cr.No.115/2017 8[c] r/w 20[b][ii][B] & 25 NDPS Act 1985 Ground Case:

Sl No.

Name of the Police station and Crime No.

Section of law Coimbatore NIBCID Cr.No.9216/2017 8[c] r/w 20[b][ii][B] & 25 NDPS Act 1985 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 13.12.2017. According to the learned counsel for the petitioner, the representation, dated 13.12.2017 has been received by the Government on 15.12.2017 ; the remarks were called on the same day. But the said remarks were received only on 28.12.2017, after a delay of 13 days. He adds that though the file was submitted to the Under Secretary on 29.12.2017, the Minister has dealt with the said file of the detenu only on 12.01.2018 with a further delay of 14 days and the rejection letter was prepared only on 18.12.

2017 and sent to the detenu on the next day. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 10 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.

4.Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 15.12.2017 and that was forwarded to the Detaining Authority, calling for remarks on the same day itself and remarks were received by the Government on 28.12.2017 and ultimately, the

representation was considered and rejected on 12.01.2018 and the result of the consideration was communicated to the detenue on 17.01.2018 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 13.12.2017 which was received by the Government on 15.12.2017, remarks have been called for from the detaining authority on the same day itself, i.e., on 15.12.2017. But, remarks have been received by the Government only on 28.12.2017 and the case of the detenue was dealt with by the Minister on 12.01.2018, i.e., after a total delay of 27 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 12.01.2018. From the above, it is clear that in between 15.12.2017 and 28.12.2017 [period between remarks called for and remarks received], there was a delay of 13 days and in between 29.12.2017 and 12.01.

2018 [period between the file dealt with by the Under Secretary and the Minister concerned], there is a further delay of 14 days. Even if we give concession to the intervening holidays, namely 16.12.2017 ; 17.12.2017 ; 23.12.2017 ; 24.12.2017 ; 25.12.2017 ; 30.12.2017 ; 31.12.2017 ; 01.01.2018 ; 06.01.2018 ; 07.01.2018, still there is a delay of 17 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 17 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 17 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 17 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 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. AP Sd/- Assistant Registrar /TRUE COPY/ Sub-Assistant Registrar To 1.The Secretary to Government Home, Prohibition & Excise Department Secretariat, Fort St George, Chennai-600 009. 2.The Commissioner of Police/Detaining Authority City Police Office, Huzur Road, Coimbatore City, Coimbatore-18.

3.The Public Prosecutor, High Court, Madras.

4.The Superintendent, Central Prison, Coimbatore.

5The Joint Secretary to Government, Public (Law & Order), Fort. St.George, Chennai-09.

H.C.P.No.2413/2017 RJ[CO] MK:28/03/2018