R.Srinivasan, M/A 52 Yrs, v. State Rep By,

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.368 of 2017 R.Srinivasan .... Petitioner vs.

1. State rep by Secretary to Government , Home, Prohibition & Excise Dept, Secretariat, Chennai - 600 009

2. The District Magistrate & The District Collector, Tiruvallur District, Tiruvallur .... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records in BCDFGISSSV No.10/2017 passed by the second respondent on 14.02.2017 set aside the same and direct the respondents to produce the detenu L.V.Mani @ Subramani, Son of Vinayagam, aged 48 years, who is now detained in Central Prison, Puzhal, Chennai 66 before this Court and set him at liberty. For Petitioner .. Mr.S. Swamidoss Manokaran For Respondents .. Mr. V.M.R. Rajentren, Additional Public Prosecutor

O R D E R

(The order of the Court was made by M.V.MURALIDARAN.,J ) The petitioner, who is the friend of the detenu L.V.Mani @ Subramani, has come up with this habeas corpus petition, challenging the detention order passed against the detenu by the second respondent, vide proceedings BCDFGISSSV No.10/2017 dated 14.02.2017.

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 28.02.2017, has been received by the Government on 06.03.2017 and remarks have been called for from the detaining authority on the same day, the remarks have been received by the Government only on 27.03.2017, after a delay of 21 days. 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 15 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 06.03.2017 and remarks have been called for from the detaining authority on the same day, however, remarks have been received by the Government only on 27.03.2017, i.e., after a delay of 21 days. From the above, it is clear that in between 06.03.2017 and 27.03.2017, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 21 days. There were 6 intervening holidays, but still there is a delay of 15 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 15 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 21 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 14.02.2017, 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.

s/d- Assistant Registrar(CO) True Copy Sub-Assistant Registrar rg

To

1. The Secretary to Govt. of Tamilnadu, Home, Prohibition & Excise Dept, Fort St. George, Chennai - 600 009

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

3. The Superintendent Central Prison, Puzhal (In Duplicate for the communication for detenu)

4. The Joint Secretary to Government Public(Law and order) Fort.St. George Chennai 9

5. The Public Prosecutor, High Court, Madras.

H.C.P.No.368 of 2017 KS(CO) sp(05/07/2017)