Mahalakshmi (78/16) v. The Principal Secretary To

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.05.2017

CORAM

THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN and THE HONOURABLE MR.JUSTICE S.BASKARAN H.C.P.No.2612 of 2016 Mahalakshmi ... Petitioner Vs.

1. The Principal Secretary to the Government Home Prohibition and Excise(XVI) Department, Secretariat, Chennai-600 009.

2. The Commissioner of Police, O/o the Commissioner of Police, Salem City.

3. The Inspector of Police, Kodalampatti Police Station, Salem District.

... Respondents Prayer:

Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the entire records in connection with the detention order in C.M.P.No.86/Goonda/Salem City/2016 dated 16.11.2016 on the file of the 2nd respondent and quash the same and direct the respondents to produce the body and person of the petitioner's son one named Baskaran @ Kozhi Baskar, aged about 39 years, now confined at Central Prison, Coimbatore before this Court and set him at Liberty.

For Petitioner : Mr.A.Raja Mohamed For Respondents : Mr.V.M.R.Rajentren, Additional Public Prosecutor

ORDER

[Order of the Court was made by M.V.MURALIDARAN, J.] This Habeas Corpus Petition has been filed by the mother of the detenu, namely, Baskaran @ Kozhi Baskar, S/o Madeshwaran, to issue a Writ of Habeas Corpus to call for the entire records in connection with the detention order in C.M.P.No.86/Goonda/Salem

City/2016, dated 16.11.2016 on the file of the 2nd respondent and quash the same and direct the respondents to produce the body and person of the petitioner's son one named Baskaran @ Kozhi Baskar, aged about 39 years, now confined at Central Prison, Coimbatore before this 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, has been received by the Government, on 16.12.2016 and the remarks have been called for from the detaining authority, on 16.12.2016. However, the remarks have been received by the Government only on 29.12.2016, after a delay of 13 days. He adds that the file was dealt with by the Minister concerned, on 30.01.2017, after the delay of 28 days and the rejection letter was communicated to the detenu, on 30.01.2017.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 16 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 25 days, which remains unexplained. Thus, there is a delay at different stages while considering the representation of the detenu. 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 16.12.2016 and the remarks have been called

for from the detaining authority on 16.12.2016. However, remarks have been received by the Government only on 29.12.2016, i.e., after a delay of 13 days and the case of the detenu was dealt with by the Minister concerned on 30.01.2017 and the same was rejected on 30.01.2017. From the above, it is clear that in between 16.12.2016 and 29.12.2016, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 13 days. Thus, there is delay at different stages while considering the representation of the detenu. Even if we give concession to the 16 intervening holidays including Government holidays, still there is a delay of 25 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 25 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 the 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 25 days delay has not been properly explained at all.

9. Further, in a decision in Ummu Sabeena vs. State of Kerala reported in (2011) 10 SCC 781, 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 16.11.2016 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(CS V) //True Copy// Sub Assistant Registrar ub/ari To

1. The Principal Secretary to the Government Home Prohibition and Excise(XVI) Department, Secretariat, Chennai-600 009.

2. The Commissioner of Police, O/o the Commissioner of Police, Salem City.

3. The Inspector of Police, Kodalampatti Police Station, Salem District.

4. The Superintendent, Central Prison, Coimbatore.

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

6. The Public Prosecutor, High Court, Madras.

+1cc to Mr.Mohamed Saifulla, Advocate, S.R.No.37172 H.C.P.No.2612 of 2016 NRJK(CO) CA(19/06/2017)