Kaliyammal v. Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2023
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR and THE HONOURABLE MR.JUSTICE SUNDER MOHAN H.C.P.No.1588/2023 Kaliyammal ..
Petitioner vs.
1.State of Tamil Nadu rep.by its Secretary Home, Prohibition and Excise Department, Fort St George, Chennai 600 009.
2.The Commissioner of Police Greater Chennai, O/o.The Commissioner of Police [Goondas Section], Vepery, Chennai 600 007.
3.The Superintendent of Prison Central Prison, Puzhal, Chennai.
4.The Inspector of Police S8 Adambakkam Police Station Chennai.
..
Respondents
Prayer:
Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus calling for the records relating to the detention order vide BCDFGISSSV No.276/2023 dated 29.06.2023 passed by the 2nd respondent and quash the same and direct the respondents herein to produce the petitioner's son namely Naveenkumar @ Moolia, son of Kannan, aged 24 years, [who is presently undergoing detention in the Central Prison, Puzhal], before this Court and set him at liberty. For Petitioner : Mr.N.Arun Kumar For Respondents : Mr.E.Raj Thilak, APP assisted by Mr.Aravind.C
O R D E R
(Order of the Court was made by S.S.SUNDAR, J.) (1)The Petitioner, mother of the detenu has filed this Petition challenging the order of detention passed by the 2nd respondent against her son, in BCDFGISSSV No.276/2023 dated 29.06.2023, branding the detenu as a "Goonda" under the Tamil Nadu Act 14 of 1982. (2)Heard the learned counsel for the petitioner and learned Additional Public Prosecutor appearing for the State.
(3)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, dated 09.08.2023. According to the learned counsel for the petitioner, the representation dated 09.08.2023, was received by the Government on 14.08.2023 ; and though the file has been dealt with by the Deputy Secretary on the same day on 14.08.2023, the Minister concerned dealt with the file only on 21.08.2023 and the Rejection Letter prepared and was sent to the detenu on the same day. It is the further submission of the learned counsel that this inordinate delay in considering the representation remains unexplained and the same vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Rajammal vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.
(4)As per the submission of the learned counsel for the petitioner and on perusal of the records, we find that, the representation of the detenu, dated 09.08.2023, which was received by the Government on 14.08.2023 ; which was dealt with by the Deputy Secretary on 14.08.2023, was dealt
with by the Minister concerned only on 21.08.2023 and the Rejection Letter was prepared on the same day. Thus, we find there is a considerable delay of four days [after excluding the intervening holidays, namely 15.08.2023, 19.08.2023 and 20.08.2023] in considering the representation of the petitioner. This delay in considering the detenu's representation remain unexplained.
(5)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 inordinate delay of four days. Therefore, we have to hold that the delay has vitiated further detention of the detenu. (6)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."
(7)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 the inordinate delay of four days, has not been properly explained at all.
(8)Further, in a recent decision in Ummu Sabeena vs. State of Kerala - 2011 STPL (Web) 999 SC, the Hon'ble 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.
(9)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. (10)Accordingly, the habeas corpus petition is allowed and the detention order in BCDFGISSSV No.276/2023 dated 29.06.2023, passed by the 2nd respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case.
[SSSRJ] [SMJ] 28.11.2023 AP Internet : Yes To 1.The Secretary State of Tamil Nadu Home, Prohibition and Excise Department, Fort St George, Chennai 600 009.
2.The Commissioner of Police Greater Chennai, O/o.The Commissioner of Police [Goondas Section], Vepery, Chennai 600 007.
3.The Superintendent of Prison Central Prison, Puzhal, Chennai.
4.The Inspector of Police S8 Adambakkam Police Station Chennai.
5.The Public Prosecutor,
High Court, Madras
S.S.SUNDAR,J.
AND SUNDER MOHAN, J.
AP .
H.C.P.No.1588/2023 28.11.2023