Eshwari v. The Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.08.2015
CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.476 OF 2015 Eshwari .. Petitioner vs.
1. The Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Secretariat, Fort St. George, Chennai - 600 009.
2. The District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Sivagangai District.
3. The Superintendent of Prison, Madurai Central Prison, Madurai District.
.. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records, connected with the detention order of the respondent No.2 in Cr.M.P.No.7/Goonda/2015 dated 17.02.2015 and quash the same and direct the respondents to produce the body or person of the detenu namely Pandithurai, Son of Arumugam, aged about 31 years, now detained in Madurai Central Prison before this Court and set him at liberty forthwith.
For petitioner : Mr.R.Alagumani For respondents : Mr. T.Mohan, Additional Public Prosecutor
ORDER
The petitioner is the mother of the detenu, namely, Pandithurai. The said detenu has been branded as 'Goonda' in detention order passed in Cr.M.P.No.7/Goonda/2015, dated 17.02.2015, by the learned District Collector and District Magistrate, Sivagangai District. The petitioner has sought for a Writ of Habeas Corpus Petition.
2. The detenu has come to the adverse notice of the police in two cases, and the cases have been registered against him in Crime No.767 of 2012 on the file of the Sivagangai Town Police Station and
279 of 2012 on the file of the Manamadurai Police Station. Further, on the complaint of the complainant, namely, Kalimuthu, a case has been registered in SIPCOT PS Cr. No.128/2014 under sections.294(b), 323, 506(ii) IPC and 4 of WH Act on 25.05.2014 at 13.30hrs. Further, a ground case has been registered in SIPCOT P.S Cr.No.03/2015, under sections.294(b), 302, 506(ii) I.P.C on 06.01.2015 at 23.00hrs. The detenu has been arrested on 07.01.2015 at 14.00 hrs near Kirungakottai Bus stop and his confession statement has been recovered.
3. Challenging the said impugned order, the learned counsel for the petitioner has raised many contentions. The pertinent point raised by the learned counsel for the petitioner is that there has been a delay in consideration of representation made on behalf of the petitioner.
4. On a perusal of the performa produced by the learned Additinal Public Prosecutor, this Court finds that the representation dated 08.04.2015 has been received by the Government on 13.04.2015 and remarks have been called for, from the Detaining Authority on 15.04.2015. However, the remarks have been received by the Government only on 24.04.2015. In between 15.04.2015 and 24.04.2015, seven clear working days, delay has been made. Again, the learned Deputy Secretary has dealt with the said representation on 24.04.2015, and the Minister for Electricity, Prohibition and Excise has dealth with the file only on 05.05.2015. In between 24.04.2015 and 05.05.2015, six working days, delay has been made. Hence, there is a delay in considering the representation during the said relevant period at two stages which have not been properly explained.
5. At this juncture, this Court which deems fit to consider the few decision on the aspect of delay.
i) In Rashid sk. Vs. State of West Bengal reported in 1973
(3) SCC 476, the Hon'ble Supreme Court considered similar issue and held that any unexplained delay in disposal of the representation would be a breach of constitutional imperative and it would render the continued detention impermissible and illegal and accordingly the Hon'ble Supreme Court has held as follows:- "The ultimate objective of this provisin can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and
its protection against arbitrary and unlawful invasion."
ii) In Icchu Devi Choraria Vs. Union of India reported in 1980(4)SCC 531, the Hon'ble Apex Court has held as follows:- "There is a constitutional obligation under Article 22(5) to consider the representation of the detenu as early as possible and if there is unreasonable and unexplained delay in considering such representation, it would have the effect of invalidating the detention of the detenu"
iii) In Ram Sukrya Mhatre V. R.D.Tyagi, 1992 Supp(3) SCC 65, the Hon'ble Supreme Court held thus:- "The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India."
iv) In G.Kalaiselvi Vs. The State of Tamil Nadu (2007 (5) CTC 657), a Full Bench of this Court has held that it is well recognised that the Authorities concerned are duty bound to afford to the detenu an opportunity of making a representation and such right of the detenu, obviously, encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay, and the result of such representation should also be communicated without any such delay.
v) In Rekha Vs. State Tamilnadu (2011 (5) SCC 244), it has been held that the personal liberty of a person is protected, under Article 21 of the Constitution of India. As it is so sacrosanct and so high in the scale of constitutional values, there is an obligation on the part of the Detaining Authority to show that, while passing the impugned order of detention, the procedures etablished by law have been meticulously followed. The procedural safe guards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. vi) 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.
6. The reason for immediate consideration of the represenation is too obvious to be stressed, as the personal liberty of a person is
at stake and any delay would not only be an indifferent act on the part of the Authorities, but would also be unconstitutional, violating the right enshrined under Article 22(5) of the Constitution of India of a Detenu to have his representation considered with reasonable expedition. The unexplained delay in considering the said representation would have the effect of vitiating the Detention Order. For reasons stated supra, the Detention Order is liable to be quashed.
7. In the result, the Habeas Corpus Petition is allowed and the impugned order of the second respondent in Cr.M.P.No.7/Goonda/2015, dated 17.02.2015, is quashed. The detenu is ordered to be set at liberty unless his presence is required in connection with any other case.
Sd/- Assistant Registrar (C.O.) /True Copy/ Sub Assistant Registrar To:
1. The Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Secretariat, Fort St. George, Chennai - 600 009.
2. The District Collector and District Magistrate, O/o. The District Collector of District Magistrate, Sivagangai District.
3. The Superintendent of Prison, Madurai Central Prison, Madurai District.
4. The Joint Secretary to Government, Public (Law and Order), Fort St.George, Chennai -9.
5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.R.Alagumani, Advocate Sr.No.43595 akm/01.09.2015 /4p-7c/ ORDER MADE IN H.C.P(MD)No.476 of 2015 03.08.2015