Sumathi, Aged 52 Years v. Government Of Tamilnadu Rep.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 23.03.2017

CORAM

THE HONOURABLE MR. JUSTICE S.NAGAMUTHU and THE HONOURABLE DR. JUSTICE ANITA SUMANTH H.C.P No.2100 of 2016 Sumathi .. Petitioner/sister Vs

1. The State of Tamil Nadu, rep by Secretary to Government, Home, Prohibition & Excise(XVI) Department, Fort St. George, Chennai - 600 009

2. The District Magistrate and District Collector, Udhagamandalam The Nilgris District.

.. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus or any other appropriate Writ, Order or Direction more specifically in the nature of a Writ of Habeas Corpus to calling for the records in connection with the order of Detention passed by the second respondent dated 29.07.2016 in Cr.M.P.No. 05/Drug Offender/2016 and quash the same and direct the respondents herein to produce the body of the detenu Paulraj, Son of late Samuel, aged about 56 years now detained in Central Prison, Coimbatore befoe this Court and set the detenu at liberty forthwith. For Petitioner :

Ms.R.Subhadra Devi For respondents:

Mr.V.M.R. Rajentren Additional Public Prosecutor

ORDER

(Order of the Court was made by S. NAGAMUTHU,J.,) This Habeas Corpus Petition has been filed by the sister 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 29.07.2016 in Cr.M.P.No.05/Drug Offender/2016 and quash the same and direct the respondents to produce the body of the detenu Paulraj, S/o late Samuvel, aged about 56 years now detained in Central Prison, Coimbatore before this Court and set the detenu at liberty forthwith.

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, has been received by the Government on 15.09.2016 and remarks have been called for from the detaining authority on 16.09.2016. However, the remarks have been received by the Government only on 27.09.2016, after a delay of 11 days. He adds that the file was dealt with by the Minister concerned on 04.10.2016 and the rejection letter was communicated to the detenu on 08.10.2016.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 06 intervening holidays and there is a delay of 11 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 15.09.2016 and remarks have been called for from the detaining authority on 16.09.2016. However, remarks have been received by the Government only on 27.09.2016, i.e., after a delay of 11 days and the case of the detenu was dealt with by the Minister concerned on 04.10.2016 and the same was rejected on 05.10.2016. From the above, it is

clear that in between 16.09.2016 and 27.09.2016 [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 11 days. There were 06 intervening holidays, but still there is a delay of 11 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 11 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 11 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 29.07.2016, 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.

-s/dAssistant Registrar(CCC) True Copy Sub-Assistant Registrar jer/sts To

1. The Secretary to Government, Home, Prohibition & Excise Department, Fort St. George, Chennai - 600 009

2. The District Magistrate and District Collector Udhagamandalam The Nilgris District.

3. The Superintendent Central Prison Coimbatore

4. The Joint Secretary to Government Public Law and order Fort St.George Chennai-9 5.The Public Prosecutor, High Court, Chennai.

H.C.P.No.2100 of 2016 kj(co) aa18/04/2017