Thangamani, v. The State Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26.10.2016

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.BASKARAN H.C.P.NO.902 of 2016 Thangamani ... Petitioner Vs.

1. The State of Tamil Nadu Rep. by its Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.

2. The Commissioner of Police Chennai Police, 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 entire records, leading to the detention of petitioner's husband Sathish @ Duma Sathish, S/o. Arjunan, M/A 31 Years has been detained under Act 14/82 as a "Goonda" vide detention order dated 15.04.2016 on the file of the 2nd respondent herein, made in Memo No.441/BCDFGISSSV/2016 and quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Puzhal, Chennai. For Petitioner : Mr.M.Rajavelu For Respondents :

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

O R D E R

[Order of the Court was made by M.JAICHANDREN, J.] This Habeas Corpus Petition has been filed by the wife of the detenu namely Sathish @ Duma Sathish, aged 31 years, Son of Arjunan, to issue a Writ of Habeas Corpus, to call for the records, in Detention Order No.441/BCDFGISSSV/2016 dated 15.04.2016, 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, who is now detained in Central Prison, Puzhal, Chennai 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 04.05.2016, and the remarks have been received by the Government on 04.05.2016. Thereafter, the file was dealt with by the Under Secretary and Deputy Secretary on 04.05.2016. However, the file was dealt with by the Minister concerned on 18.05.2016 and the rejection letter was communicated to the detenu on 20.05.2016. Here again there is a delay of 10 days, excluding 4 intervening holidays. There is 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.

(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, has been received by the Government on 04.05.2016, and the

remarks have been received by the Government on 04.05.2016. Thereafter, the file was dealt with by the Under Secretary and Deputy Secretary on 04.05.2016. However, the file was dealt with by the Minister concerned on 18.05.2016 and the rejection letter was communicated to the detenu on 20.05.2016. Even if we give concession to the intervening holidays, including Government holidays, namely 07.05.2016, 08.05.2016, 14.05.2016 and 15.05.2016, still there is a delay of 18 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 18 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 18 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 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 15.04.2016, 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 TK To

1. The Secretary to Government Government of Tamil Nadu Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.

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

3. The Superintendent, Central Prison, Puzhal, Chennai.

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

5. The Public Prosecutor High Court of Madras Chennai.

H.C.P. NO.902 OF 2016 EV(CO) CA(22/12/2016)