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Madras High CourtHCP/11/2016allowed

Anupriya v. The Secretary To Government

2016-06-01Honourable Mr Justice V. Bharathidasan,Honourable Mr Justice S. Nagamuthu4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.06.2016

CORAM

THE HON'BLE MR.JUSTICE S.NAGAMUTHU and THE HON'BLE MR.JUSTICE V.BHARATHIDASAN H.C.P.No. 11 of 2016 Anupriya ... Petitioner/Wife of Detenu Vs.

1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. Commissioner of Police, Vepery, Chennai.

... Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent in BCDFGISSSV No.1235/2015 dated 08.12.2015 against the detenu, namely, Pandian @ Mayakrishnan, son of Anandan, aged about 24 years, who is now confined at Central Prison, Puzhal and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : Mr.M.Mohana Sundaram For Respondents : Mr.A.N.Thambidurai Additional Public Prosecutor

O R D E R

[Order of the Court was made by V.BHARATHIDASAN, J.] This Habeas Corpus Petition has been filed by the wife of the detenu to issue a Writ of Habeas Corpus, to call for the records relating to the impugned order passed by the second respondent in BCDFGISSSV No.1235/2015, dated 08.12.2015, detaining the detenu, namely, Pandian @ Mayakrishnan, aged about 24 years, S/o Anandan, under Section 3(1) 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 14/1982), branding him as a "Goonda" as contemplated u/s 2(f) of the Tamil Nadu Act 14 of 1982, and to set aside the same and to direct the respondents to produce the detenu before this Court and set him at liberty.

2.Even though, Mr.M.Mohana Sundaram, 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 has been received by the Government on 28.12.2015 and remarks have been called for from the detaining authority on 29.12.2015. However, the remarks have been received by the Government only on 11.01.2016, after a delay of 13 days. He adds that the file was dealt with by the Deputy Secretary on 11.01.2016 and the Minister concerned dealt with the same on 29.01.2016 with a further delay of 18 days.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 11 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 20 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, Mr.A.N.Thambidurai, 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 28.12.2015 and remarks have been called for from the detaining authority on 29.12.2015. However, remarks have been received by the Government only on 11.01.2016, i.e., after a delay of 13 days and the case of the detenu was dealt with by the Deputy Secretary on 11.01.2016 and the Minister concerned dealt with the same on 29.01.2016 with a further delay of 18 days. From the above, it is clear that in between 29.12.2015 and 29.01.2016, there is a delay of 31 days. Even if we give concession to the 11 intervening holidays including Government Holidays viz., 01.01.2016; 02.01.2016; 03.01.2016; 09.01.2016; 10.01.2016; 15.01.2016; 16.01.2016; 17.01.2016; 23.01.2016; 24.01.2016; and 26.01.

2016 still there is a delay of 20 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 20 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 Hon'ble 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 20 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 Hon'ble 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 08.12.2015, 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(CS V) //True Copy// Sub Assistant Registrar sri To

1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police, Vepery, Chennai.

3. The Superintendent, Central Prison, Puzhal, Chennai.

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

5. The Additional Public Prosecutor High Court, Madras.

H.C.P.No.11 of 2016 GJ II(CO) CA(14/06/2016)