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2004 DIGILAW 56 (MAD)

Kanchana v. The State of Tamil Nadu & Another

2004-01-28

FAKKIR MOHAMED IBRAHIM KALIFULLA, V.S.SIRPURKAR

body2004
Judgment :- V.S.Sirpurkar, J. Challenge is to the order dated 29.9.2003 passed by the District Magistrate and District Collector, Vellore, branding one Sundaram, S/o Vellai @ Munuswamy as a bootlegger and directing his detention under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982). The said person is shown to have been involved in as many as 12 criminal cases pertaining to the offences under the Tamil Nadu Prohibition Act and is also said to be involved in an incident dated 14.9.2003, where he was found to be in possession of 100 litres of illicitly distilled arrack, which ultimately was found to be laced with atropine, a poisonous substance. The percentage of atropine was 6.7%, which according to the doctor could be a fatal percentage. 2. Learned counsel for the petitioner before us firstly urged that there was a delayed consideration of the representation made by the wife of the detenu. The said representation is dated 3.11.2003, which reached the Government on 5.11.2003. The remarks were called on 7.11.2003 from the detaining authority, which remarks reached back the Government on 17.11.2003. The files were submitted on 20.11.2003. They were considered by the authorities on 20.11.2003, 21.11.2003 and 24.11.2003 and on 24.11.2003, the representation was rejected. This according to us, cannot said to be a delayed consideration. Learned counsel, however, further argued that there was a second representation made. This was even before the representation reached the Government on 20.11.2003. The remarks were called on 21.11.2003 and it was ultimately rejected on 26.12.2003. According to the learned counsel, the second representation was not considered in time and the delay caused has breached the constitutional right of the petitioner. 3. In support of her contention, the learned counsel firstly relied on a reported decision of the Supreme Court reported in 1998 S.C.C (Criminal) 831 – PREM LATA SHARMA .VS. DISTRICT MAGISTRATE, MATHURA AND OTHERS, and more particularly on the observations made in paragraphs 3 and 4 thereof. We have considered the decision carefully and we find that it is not applicable to the present case. That was a case where the representation made to the State Government was not forwarded to the Central Government and that was found fault with. We have considered the decision carefully and we find that it is not applicable to the present case. That was a case where the representation made to the State Government was not forwarded to the Central Government and that was found fault with. Therefore, that was a case of non consideration of a representation made to the Central Government. The Supreme Court observed that it was not for the State Government to decide as to which representation was to be forwarded and which representation was not to be forwarded. The facts are quite different here. 4. The second decision relied upon by the learned counsel is 1988 Crl.L.J.164 – PIARA SINGH .vs. STATE OF PUNJAB. The learned counsel points out that in this case the advocate had made a representation, which was a second representation and that was not considered in good time and therefore the Supreme Court found that there was a delayed consideration of that representation and therefore the preventive detention was quashed. The learned counsel relies more particularly on the observations made in paragraph 7, which reads thus, "No explanation is given in the counter affidavit as to why the representation could not have been dealt with and disposed of earlier, and hence it must be held that the order of detention of the petitioner is vitiated by reason of delay in dealing with his representation." In paragraph 8 also, the Supreme court observed as follows, "8. It was contended by the learned counsel for the respondent that the representation made by the detenu to the Special Secretary, Government of Punjab was invalid as the Advocate who sent the representation had no authority to make that representation. It was submitted by him in the alternative that the delay in dealing with the representation was on account of the fact that it was made by a person claimed to be the Advocate of petitioner but whose authority was not checked. In our view, neither of these contentions can be upheld. These contentions have not been taken up in the counter-affidavit and cannot be urged merely at the hearing of the petition. There is nothing in law which prevents a representation being made by an Advocate on behalf of the detenu. In our view, neither of these contentions can be upheld. These contentions have not been taken up in the counter-affidavit and cannot be urged merely at the hearing of the petition. There is nothing in law which prevents a representation being made by an Advocate on behalf of the detenu. If there was any difficulty on that ground, enquiries should have been made with the Advocate as to what was his authority to represent the detenu, and no such enquiry has been made in the present case. Thus, in the present case, the fact that the representation was made by the Advocate does not explain the delay in dealing with that representation and cannot constitute any explanation for the delay in dealing with it." 5. Learned counsel points out that after the first representation was sent even before the first representation was rejected. That was on 20.11.2003 and that came to be rejected only on 29.11.2003 with considerable delay. She also further points out that the second representation was made by the Advocate. She therefore contends that there is no explanation whatsoever as to why it took enormous time to dispose of the representation and that would result in the breach of the constitutional right of the detenu. 6. It is true that the representation was sent by the Government for the comments of the detaining authority on 21.11.2003, which was received by the detaining authority on 22.12.2003 and he called for the comments of the sponsoring authority on 24.11.2003 and the sponsoring authority submitted his comments only on 17.12.2003. It is also pointed out that between 25.11.2003 to 17.12.2003, there were as many as nine holidays on account of Saturdays and Sundays.Yet, there can be no dispute that the representation was ultimately disposed of after it was considered by the Under Secretary, Additional Secretary and the Minister on 19.12.2003 and 22.12.2003, before whom, the file was placed on 19.12.2003. The question is as to whether there has been any unexplained delay in the matter of both the representations affecting the validity of detention. 7. We have carefully seen both the representations. In the first representation, the wife of the detenu has made a complaint that her husband was not involved in any of the offences shown and he was implicated in false cases. 7. We have carefully seen both the representations. In the first representation, the wife of the detenu has made a complaint that her husband was not involved in any of the offences shown and he was implicated in false cases. She also says that he is wholly innocent and that he was arrested without any justification therefor. She points out that they are the residents of the same village and were working as coolies and were eking their livelihood. She has also pointed out that she was not informed of the arrest nor was any effort made to intimate the order of arrest or detention. In the second representation, which has been drafted by an advocate, what is tried to be suggested is that the cases are false; that there has been no intimation sent to the family members; that the possibility of the imminent bail did not appear in the grounds; and some other technical objections to the detention. Though it could be said that the second representation is more detailed, elaborate and technical in nature, it cannot be said that it is based on any fresh material or any fresh grounds, or any subsequent events or circumstances. The representation having been made by a lawyer, is more elaborate wherein it is tried to be shown that the detenu is falsely implicated in the ground case also and there was no necessity of the detention. The aspect of necessity of the detention appears even in the first representation, where the wife of the detenu has specifically stated that her husband, the detenu was not involved in any prohibition offence. It can only be said that the aspect of necessity of detention has been elaborately presented in the subsequent representation. We are, therefore, of the opinion that though the second representation is undoubtedly elaborate and technical in nature, it does not have any fresh material based on the subsequent events or any fresh grounds. 8. Under the circumstances, could the detenu be said to have a constitutional right to make the successive representation, is the question to be decided. This question has been answered by the Supreme Court in the judgment reported in 2003(2) crimes 511 – ABDUL RAZAK DAWOOD DHANANI .VS. UNION OF INDIA AND OTHERS. This was also a case of a second representation not being entertained at all. This question has been answered by the Supreme Court in the judgment reported in 2003(2) crimes 511 – ABDUL RAZAK DAWOOD DHANANI .VS. UNION OF INDIA AND OTHERS. This was also a case of a second representation not being entertained at all. What was there pressed into service before the Apex Court was that it was a case where a subsequent representation was not considered at all and that resulted in the breach of the constitutional right of the detenu under Article 22(5) of the Constitution of India. The Supreme Court took into consideration the law laid down in the earlier cases, starting from Ram Bali Rajbhar v. The State of West Bengal and Others - (1975) 4 S.C.C.47, State of Uttar Pradesh .vs. Zavad Zama Khan – (1984) 3 S.C.C.505, Sat Pal .vs. State of Punjab - (1982) 1 S.C.C.12, K.Aruna Kumari .vs. Government of Andhra Pradesh and Others - (1988) 1 S.C.C.296 and the constitution Bench judgment in Makhan Lal Gokhul Chand .vs. Administrator, Union Territory of Delhi and another - 1999) 9 S.C.C.504. The Supreme Court, then holds in paragraph 8 as follows, "It thus appears from the aforesaid judgment that even the statutory power vested in the Central Government to revoke the order of detention may be exercised in its discretion only in cases where "fresh materials" or "changed or new factors" call for the exercise of that power, and there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. This principle finds affirmation in a judgment rendered by a constitution bench of this Court in Makhan Lal Gokhul Chand -vs- Administrator, Union Territory of Delhi and Another (1999) 9 S.C.C.504, in which this Court found that the petitioner challenged the order of detention and failed thrice, and yet filed another representation which did not disclose any fresh material, nor were any subsequent events pointed out which may have warranted a "fresh" consideration of the representation made by the detenu. It was only a change in the language of the representation. The Delhi Administration was, therefore found, justified in rejecting the representation since there were no "fresh grounds" nor any "fresh material" or "subsequent events" brought out in the last representation. It was only a change in the language of the representation. The Delhi Administration was, therefore found, justified in rejecting the representation since there were no "fresh grounds" nor any "fresh material" or "subsequent events" brought out in the last representation. There was, therefore, no obligation on the part of the State to get that representation considered by a "fresh Advisory Board" and, therefore, the exercise of this discretion by the State in rejecting the representation and not constituting a "fresh" Advisory Board could not be faulted. The writ petition was accordingly dismissed." The Apex Court has also taken note of the arguments of the Additional Solicitor General on behalf of the State that unless the successive representation contains any fresh grounds or fresh materials or any subsequent events, there is no constitutional right of a detenu for such representation being even considered. The Court in paragraphs 11 then compared the two representations and found that they were only differently worded and there were no fresh grounds or fresh materials brought in in the second representation. It went on to observe as follows, "Having not found any new ground or fresh material or any subsequent event justifying a consideration of the second representation of the detenu, we are not persuaded to hold that in these circumstances the Central Government was bound to consider the second representation and pass a separate order disposing of the same. In fact all the grounds stated in the second representation were also stated in the first representation which was rejected by the central Government after obtaining opinion of the Advisory Board and after due consideration. There was, therefore, no obligation on the part of the Central Government to pass a similar order again on the basis of the second representation which did not contain any new or fresh grounds justifying a fresh consideration." (emphasis supplied) 9. Once it is held that a second representation, which was sans any fresh material or fresh grounds, did not deserve even a consideration, there will be no question of the delay in such consideration. It is an admitted position that in this case, the representation has not only been considered, but has been rejected and such rejection order has been served on the detenu. It is an admitted position that in this case, the representation has not only been considered, but has been rejected and such rejection order has been served on the detenu. We do not see as to what justification would be there to quash the detention merely on the ground that the second representation which was substantial like the first representation was rejected with some delay. We do not mean to hold that a second representation should not be considered with alacrity. That would be undoubtedly a constitutional obligation on the part of the State Government. But, however where the second representation is a mere repetitive representation, there will be no right of its consideration and if there is no right of even consideration, some insignificant delay caused in consideration of the representation would not, in our opinion, invalidate the detention. In this case, barring the nine holidays, the unexplained period is only nine days. 10. Under the circumstances, we are of the opinion, there would be no question of delay affecting the validity of the detention. The petition has no merits and it is dismissed. We must appreciate that the learned counsel for the petitioner has very ably assisted us while arguing the matter.