Serina v. State Rep. By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.06.2016 Coram:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN H.C.P.No.265 of 2016 Serina .. Petitioner vs.

1.State Rep. by its Secretary to Government of Tamilnadu, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The Commissioner of Police, Chennai City Police, Chennai -7.

.. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus, to call for the records in Memo No.1188/BCDFGISSSV/2015 dated 13.11.2015 on the file of the second respondent and quash the detention as illegal and direct the respondents to produce the detenue Tmt.Kurshith female aged 42, w/o.Kadhar Basha, No.4, Rajivgandhi Salai, Second Cross Street, Urapakkam, Chennai, now confined at Central Prison, Puzhal before this Court and set her at liberty forthwith.

For Petitioner : Prof.M.Udaya Bhanu For Respondents : Mr.A.N.Thambi Durai, Addl. Public Prosecutor (Crl.side)

O R D E R

(Order of the Court was made by V.BHARATHIDASAN, J.) This Habeas Corpus Petition is filed by the daughter of the detenue, namely, Kurshith, aged 42 years, Wife of Kadhar Basha, to issue a Writ of Habeas Corpus, to call for the records, in No.1188/BCDFGISSSV/2015 dated 13.11.2015, passed by the 2nd Respondent, detaining the detenue, under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act,

1982 (Tamil Nadu Act 14/1982), the Tamil Nadu Act 14 of 1982, branding her as a "Goonda", in the Special Prison for Women, Puzhal, Chennai, and to quash the same and to direct the respondents to produce the body of the detenue and set her 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 detenue. According to the learned counsel for the petitioner, the representation of the detenue, has been received by the Government on 18.12.2015 and remarks have been called for from the detaining authority on 18.12.2015. However, the remarks have been received by the Government only on 31.12.2015, after a delay of 13 days. He adds that the file was dealt with by the Minister concerned on 11.01.2016 and the rejection letter was communicated to the detenue on 12.01.2016.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 6 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 7 days, which remains unexplained. The unexplained delay in considering the representation of the detenue 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 appearing for the respondents 1 and 2 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 detenue. 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 detenue was received by the Government on 18.12.2015 and remarks have been called for from the detaining authority on 18.12.2015. However,

remarks have been received by the Government only on 31.12.2015, i.e., after a delay of 13 days and the case of the detenue was dealt with by the Minister concerned on 11.01.2016 and the same was rejected on 12.01.2016. From the above, it is clear that in between 18.12.2015 and 31.12.2015, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 13 days. Even if we give concession to the 6 intervening holidays including Government holidays, namely 19.12.2015, 20.12.2015, 23.12.2015, 25.12.2015, 26.12.2015 and 27.12.2015 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 detenue.

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 detenue, 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 detenue.

11. Accordingly, the habeas corpus petition is allowed and the detention order dated 13.11.2015, passed by the 2nd respondent is quashed. The detenue is directed to be set at liberty, forthwith, unless her presence is required in connection with any other case.

-s/dAssistant Regitrar True Copy Sub-Assistant Registrar To:

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

2.The Commissioner of Police, Chennai City Police, Chennai -7.

3. The Superintendent, Special Prison for Women, Puzhal, Chennai

4. The Joint Secretary to Government Public Law and Order Fort St.George Chennai-600 009

5. The Public Prosecutor, High Court, Madras H.C.P.No.265 of 2016 aa18/07/2016