R. Vasanthi v. The Principal Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.07.2020

CORAM:

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM and THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI R.Vasanthi ... Petitioner/ wife of Detenue -vs1.State of Tamil Nadu rep.by The Principal Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-600 009 2.The District Collector and District Magistrate O/o.The District Collector and District Magistrate Theni District, Theni 3.The Superintendent Central Prison, Madurai ... Respondents PRAYER : Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus calling for the entire records in detention order passed in Detention Order No.14/2019/C3 dated 22.10.2019 on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's husband namely Ravisekar @ Yeti Ravi, son of Pinnathevar, male, aged 39 years, who is detained in Central Prison, Madurai, before this Court and set him at liberty.

For Petitioner :

Mr.S.Ramachandra Pradeep For Respondents :

Mr.V.Neelakandan Additional Public Prosecutor

O R D E R

(Order of the Court was made by K.KALYANASUNDARAM, J.) This habeas corpus petition has been filed by the wife of the detenu, namely, Ravisekar @ Yeti Ravi, son of Pinnathevar, aged 39 years, against the detention order No.14/2019/C3, dated 22.10.2019, passed by the second respondent, branding him as "DrugOffender" as contemplated under Section 2(e) of Tamil Nadu Act, 14 of 1982.

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2.

Mr.S.Ramachandra Pradeep, learned counsel for the petitioner, would argue that even though the petitioner has raised several grounds, he has confined his arguments only to the delay in disposal of the petitioner's representation. It is submitted by the learned counsel for the petitioner that the procedural safeguards guaranteed under Articles 21 and 22 of the Constitution of India have not been followed in this case and there is unexplained and inordinate delay in disposal of the petitioner's representation, which would vitiate the impugned order of detention.

3. Mr.V.Neelakandan, learned Additional Public Prosecutor, on instructions, submitted that there is no delay in disposal of the representation and the detention order has been passed by the Detaining Authority based on the cogent materials placed by the Sponsoring Authority and there is no illegality or infirmity in the detention order. It is also stated that even if there is any delay in disposal of the representation, it has not caused any prejudice to the rights of the detenu and hence, prayed for dismissal of the habeas corpus petition.

4. Heard both sides and perused the materials available on record.

5. In the instant case, the proforma furnished by the learned Additional Public Prosecutor would indicate that as against the impugned detention order, the petitioner made a representation to the first respondent on 31.10.2019 and it was received on 04.11.2019. Remarks were called for on 05.11.2019 and it was received on 12.11.2019. The Under Secretary as well as the Deputy Secretary dealt with the matter on 15.11.2019. The concerned Minister dealt with the matter on 27.11.2019 and the representation came to be rejected on 29.11.2019. It is seen that in between 15.11.2019 and 27.11.2019, there was a delay of seven days, after excluding the Government Holidays of four days, in considering the petitioner's representation.

6. At this juncture, it is useful to refer the decision of the Honourable Apex Court in the case of Rajammal vs. State of Tamil Nadu and another, reported in 1999 (1) SCC 417, wherein it is held as follows:

"7. 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 consideration for the decision to be taken on the representation, the words äs 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. But that does not mean that the authority is preempted form explaining the delay which would have occasioned in the disposal of the 2/4

representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable caused. This position has been well delineated by a Constitution Bench of this Court in M.M.Abdulla Kunhi v. Union of India, 1991 (1) SCC (Cri)

613. The following observations of the Bench can profitably be extracted here: (SCC 484, Para 12) "It is a Constitutional mandate commanding the authority concerned to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words 'as soon as may be'occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and dispose of with a sense of urgency without any avoidable delay. However, there can be no hard and fact rule in this regard.

It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the Detention Law concerned within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the Constitutional imperative and it would render the continued detention impermissible and illegal."

8. The position, therefore, now is that if delay was caused on account of nay indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned."

7. In the case on hand, as stated supra, the delay of seven days in considering the representation of the detenu has not been properly explained by the respondents. Hence, in our considered view, the detention order is liable to be set aside solely on the ground of delay by following the decision of the Honourable Apex Court referred supra.

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8. In fine, the Habeas Corpus Petition is allowed. The detention order No.14/2019/C3, dated 22.10.2019, passed by the second respondent, is set aside. Consequently, the detenu, namely, Ravisekar @ Yeti Ravi, son of Pinnathevar, aged 39 years, who is now detained at Central Prison, Madurai, is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case / proceedings. Sd/- Assistant Registrar () // True Copy // / /2020 Sub Assistant Registrar(CS ) krk / skn Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To:

1.The Principal Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Secretariat, Chennai-600 009.

2.The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, Theni District, Theni.

3.The Superintendent, Central Prison, Madurai.

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

5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

22.07.2020 SPU(31.07.2020)4P 6C 4/4