Shanmugam, v. Government Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.05.2017

CORAM

THE HONOURABLE MR. JUSTICE M.V.MURALIDARAN and THE HONOURABLE MR.JUSTICE S.BASKARAN H.C.P No.36 of 2017 Shanmugam .. Petitioner Vs

1. Government of Tamil Nadu, Rep. By its Principal Secretary, Home, Prohibition and Excise (XVI) Dept., Fort St.George, Chennai - 600 009.

2. The District Magistrate and District Collector, Dharmapuri District, Dharmapuri.

.. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India to issue a Writ, order or Direction in the nature of a Writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent dated 23.09.2016 in S.C.No.29/2016 against the petitioner's son, detenu Karthick, S/o.Shanmugam, who is confined at Central Prison, Salem, and to set aside the same and consequently direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner :

Mrs.R.Subhadra Devi For respondents:

Mr.V.M.R. Rajentren, Addl. Public Prosecutor

O R D E R

(Order of the Court was made by M.V.MURALIDARAN,J.) This Habeas Corpus Petition has been filed by the father of the detenu to issue a Writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent dated 23.09.2016 in S.C.No.29/2016 against the petitioner's son, Karthick, S/o.Shanmugam, male, aged 24 years and now he was confined at Central Prison, Salem, and set aside the same and direct the respondents to produce the body of

detenu before this Hon'ble Court and set him at liberty.

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. According to the learned counsel for the petitioner, the representation of the detenu dated 03.01.2017, has been received by the Government on 05.01.2017 and remarks have been called for from the detaining authority on 05.01.2017. However, the remarks have been received by the Government only on 12.01.2017, after a delay of 7 days. He adds that though the file was dealt with by the Deputy Secretary on 13.01.2017, the Minister concerned has dealt with the file only on 19.01.2017, after a delay of 6 days and the rejection letter was communicated to the detenu on 23.01.2017.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 6 intervening holidays and there is a delay of 13 days, 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, the learned Additional Public Prosecutor had submitted that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. The learned Additional Public Prosecutor had further submitted 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 representation 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, the representation of the detenu was received by the Government on 05.01.2017 and remarks have been called for from the detaining authority on 05.01.2017. However, remarks have been received by the Government only on 12.01.2017, i.e., after a delay of 7 days and after the Deputy Secretary dealt with the file on 13.01.2017, the case of the detenu was dealt with by the Minister concerned only 19.01.2017 and the same was rejected on 19.01.2017. From the above, it is clear that in between 05.01.2017 and 19.01.2017, [i.e., the

intermittent days between the remarks called for and the case of the detenu dealt with by the Minister concerned] there is a delay of 13 days. There were 6 intervening holidays, but still there is a delay of 7 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 7 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 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."

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 7 days delay has not been properly explained at all.

9. 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.

10. 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.

11. Accordingly, the habeas corpus petition is allowed and the detention order dated 23.09.2016, passed by the second 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 sra To

1. The Secretary to Government of Tamil Nadu, Prohibition and Excise Dept., Fort St.George, Chennai - 600 009.

2. The The District Magistrate and District Collector, Dharmapuri District, Dharmapuri.

3. The Public Prosecutor, High Court, Chennai.

4. The Superintendent, Central Prison, Salem.

5. The Joint Secretary to Government, Public (Law & Order), Fort St. George, Chennai-9.

+1cc to Mrs.Subadra Devi, Advocate, S.R.No.37331 H.C.P.No.36 of 2017 LRS(CO) RS(09/06/2017)