Chithrangi v. State Of Tamil Nadu Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.8.2016 Coram:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN H.C.P.No.784 of 2016 Chithrangi .. Petitioner vs.

1. State of Tamil Nadu, Rep. by its Secretary to Government, Home, Prohibition & Excise department, Secretariat, Chennai-600 009.

2.District Collector and District Magistrate of Cuddalore District, Cuddalore. ..

Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus, calling for the entire records, relating to the detention order of the husband of the petitioner under Tamil Nadu Act 14 of 1982 vide detention order, dated 28.03.2016 on the file of the second respondent herein made in proceedings C3/D.O/04/2016, quash the the same as illegal and consequently direct the respondents herein to produce her husband, namely, Kathir (a) Kathiravan son of Thiyagarajan (a) Paramasivam, aged 30 years before this Court and set him at liberty from detention, who is now detained at Central Prison, Cuddalore.

For petitioner : Mr. C.C.Chellappan For Respondents : Mr.V.M.R. Rajentren, Addl. Public Prosecutor

O R D E R

(Order of the Court was made by S.NAGAMUTHU, J.) The petitioner/detenu has been branded as a "Bootlegger" under the Tamil Nadu Act 14 of 1982 and detained under the order of the 2nd respondent passed in C.3/D.O/04/2016 dated 28.03.2016.

2. Even though the petitioner has raised many grounds in assailing the impugned order of detention in the petition, the learned counsel 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 12.04.2016 and remarks have been called for from the detaining authority on 13.04.2016 However, the remarks have been received by the Government only on 28.04.2016, after a delay of 15 days. He adds that the file was dealt with by the Minister concerned on 17.05.2016 and the rejection letter was send to the detenu on 18.05.2015 and the same was served to the detenu on 25.05.2016.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 06 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 9 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 appearing for the respondents 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 dealin 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 12.04.2016 and remarks have been called for from the detaining authority on 13.04.2016. However, remarks have been received by the Government only on 28.04.2016, i.e., after a delay of 15 days and the case of the detenu was dealt with by the Minister concerned on 17.05.2016 and the same

was rejected on 18.05.2016. From the above, it is clear that in between 12.04.2016, 28.04.2016,[i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 15 days. Even if we give concession to the 06 intervening holidays including Government holidays, namely 14.04.2016, 16.04.2016, 17.04.2016, 19.04.2016, 23.04.2016 and 24.04.2016 still there is a delay of 9 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 9 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 9 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 28.03.2016, passed by the 2nd respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless her presence is required in connection with any other case.

Sd/- Asst. Registrar.

/true copy/ Sub Asst. Registrar.

kua To:

1.The Secretary to the Government, Home, Prohibition & Excise department, Secretariat, Chennai-9.

2.District Collector, District Magistrate, Tiruvallur District, Tiruvallur.

3 The Superintendent, Central Prison, Cuddalore 4 The Joint Secretary to Government, Public (Law & Order), Fort St. George, Chennai 9

5. The Public Prosecutor, High Court, Madras.

H.C.P.No.784 of 2016 EV(CO) MD : 15/09/2016