Vinitha v. State Of Tamil Nadu Rep. By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.10.2016

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.BASKARAN H.C.P.No.759 of 2016 Vinitha

...Petitioner

Vs.

1.State of Tamil Nadu rep. by the Secretary, Home, Prohibition & Excise Department, Fort St. George, Chennai - 600 009.

2.The Commissioner of Police, The Commissioner Office Vepery, Chennai-7.

..Respondents Prayer: Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus calling for the records in connection with the order of detention passed by the second respondent, in Memo No.56/BCDFGISSSV/2016, dated 05.02.2016, against the detenu, viz., Thiru. Vimal @ Psyco Vimal @ Vimalanathan, son of Vedhagiri, aged about 26 years, who is confined at the Central Prison, Puzhal, Chennai, and to set aside the same and to direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : M/s.A.Charles For Respondents : Mr.V.M.R.Rajentren, Additional Public Prosecutor

ORDER

[Order of the Court was made by M.JAICHANDREN, J.] This Habeas Corpus Petition has been filed by the sister of the detenu, namely, Vimal @ Psyco Vimal @ Vimalanathan, son of Vedhagiri, aged about 26 years, to issue a Writ of Habeas Corpus, to call for the records, relating to the Detention Order No.56/BCDFGISSSV/2016, dated 05.02.2016, passed by the

Commissioner of Police, Greater Chennai Police, the second respondent herein, detaining the detenu, 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", and to quash the same and to direct the respondents to produce the body and person of the detenu and set him at liberty. 2.Though various grounds have been raised in the affidavit filed in support of the petition, the learned counsel appearing on behalf of the petitioner has confined his arguments only in respect of delay in considering the representation of the detenu. 3.

According to the learned counsel for the petitioner, the representation of the detenu, has been received by the Government, on 22.04.2016, and the remarks have been called for from the detaining authority, on 22.04.2016. However, the remarks have been received by the Government only on 03.05.2016, after a delay of 22 days. She has added that the file was dealt with by the Deputy Secretary on 29.04.2016 and the same was also dealt with by the Minister on 17.05.2016 and the rejection letter was communicated to the detenu, on 19.5.2016.

4. The learned counsel has submitted that as per the Proforma submitted by the learned Additional Public Prosecutor, there was a delay of 30 days and there were 15 intervening holidays and even if the holidays are deducted, still 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.

5. 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 in considering and disposing of the representation of the detenu. It is contended that such a delay is not fatal to the impugned order of detention, as the authorities concerned are dealing with the file right from the date of receipt of the representation without any let-up, and therefore, he prayed for the dismissal of the petition.

6. We have considered the rival submissions carefully with regard to the facts as well as the decisions cited and perused the materials available on record.

7. As per the Proforma submitted by the learned Additional Public Prosecutor, the representation of the detenu was received by the Government on 06.04.2016 and the remarks have been called for from the detaining authority on 07.04.2016. However, the remarks have been received by the Government only on 29.04.2016, i.e., after a delay of 22 days and the case of the detenu was dealt with by the Deputy Secretary on 29.04.2016 and the same was also dealt with by the Minister concerned on 17.5.2016 and the same was rejected on 18.5.2016. From the above, it is clear that in between 07.04.2016 and 29.04.2016, [i.e., the intervening days between the remarks called for and the remarks received] there is a delay of 22 days. Even if we have taken into account the 15 days of intervening holidays including the Government holidays, still there is a delay of 15 days, which remains unexplained.

8.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 the order of detention.

9.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."

10. 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, in the case on hand, the delay of 15 days has not at all been explained properly.

11. Further, in a decision in Ummu Sabeena vs. State of Kerala reported in (2011) 10 SCC 781, 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.

12. 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.

13. Accordingly, the habeas corpus petition is allowed and the detention order, dated 23.3.2016, 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 II) //True Copy// Sub Assistant Registrar To 1.The Secretary to Government of TamilNadu, Home, Prohibition & Excise Department, Fort St. George, Chennai - 600 009.

2.The Commissioner of Police, (Greater Chennai) Office of the Commissioner of Police, Vepery, Chennai.

3.The Joint Secretary to Government, Public Law & Order, Secretariat Chennai-9.

4.The Superintendent, Public Law & Order, Secretariat, Chennai-9.

5.The Public Prosecutor, High Court, Madras.

H.C.P.No.759 of 2016 mg[co] srg 19/12/2016