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Madras High CourtHCP/942/2016allowed

Rajesh v. The State Of Tamilnadu Rep By

2016-10-25Honourable Mr Justice S. Baskaran,Honourable Mr Justice M. Jaichandren4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25.10.2016

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.BASKARAN H.C.P.No.942 of 2016 Rajesh ..

Petitioner Vs.

1.The State of Tamil Nadu, rep by its Secretary to Government, Home Prohibition & Excise Department, Chennai - 600 009 2.The Commissioner of Police, Greater Chennai, Chennai-600 007.

..

Respondents 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 Order No.419/BCDFGISSSV/2016, dated 12.4.2016, against the detenue, namely Ellamma, Wife of Rajesh, aged about 45 years, who is confined at the Special Prison for Women, Puzhal, Chennai and to set aside the same and to direct the respondents to produce the detenue before this Court and set her at liberty.

For Petitioner : Mr.K.Gandhikumar 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 husband of the detenue, namely, Ellamma, wife of Rajesh, aged about 45 years, to issue a Writ of Habeas Corpus, to call for the records, in Detention Order No.419/BCDFGISSSV/2016, dated 12.04.2016, passed by the second respondent herein, detaining the detenue, 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 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 and person of the detenue and set her 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 detenue. According to the learned counsel for the petitioner, the representation of the detenue, has been received by the Government, on 25.5.2016, and the remarks have been called for from the detaining authority, on 25.5.2016. However, the remarks have been received by the Government only on 30.5.2016, after a delay of 5 days. He adds that the file was dealt with by the Minister concerned, on 4.6.2016 and the rejection letter was communicated to the detenue, on 7.6.2016.

It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 3 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 4 days, which remains unexplained. Thus, there is delay at different stages while considering the representation of the detenue. 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 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 25.5.2016 and the remarks have been called for from the detaining authority on 25.5.2016.

However, remarks have been received by the Government only on 30.5.2016, i.e., after a delay of 5 days and the case of the detenue was dealt with by the Minister concerned on 4.6.2016 and the same was rejected on 6.6.2016. From the above, it is clear that in between 25.5.2016 and 30.5.2016, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 5 days. Thus, there is delay at different stages while considering the representation of the detenu. Even if we give concession to the 3 intervening holidays including Government holidays, namely 28.5.2016, 29.5.2016 and 4.6.2016, still there is a delay of 4 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 4 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 4 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 12.4.2016, passed by the second respondent is quashed. The detenue 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 vvk To 1.The Secretary to Government, Home Prohibition & Excise Department, Secretariat, Chennai - 600 009 2.The Commissioner of Police, Greater Chennai, Chennai-600 007.

3. The Superintendent of Prisons Special Prison for Women Chennai 4.The Joint Secretary to Government Public Law and order Fort Saint George Chennai 5.The Public Prosecutor, High Court, Madras.

H.C.P.No.942 of 2016 ks(co) aa15/12/2016