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2005 DIGILAW 1066 (MAD)

Mariam Beevi v. The State of Tamilnadu & Others

2005-07-14

M.KARPAGAVINAYAGAM, S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (Petition filed under Article 226 of the Constitution of India praying to call for the records relating to the impugned detention order in SR.I/23-6/2005 dated 17.01.2005 passed by the first respondent and quash the same and direct the respondents to produce the body of the person of the detenu Ahamed Jalludeen, son of Sultan, COFEPOSA detenu now detailed in Central Prison, Chennai, before this Court and set him at liberty forthwith.) M. Karpagavinayagam, J. The detention order dated 17.1.2005 is under challenge before this Court by the mother of the detenu. Though several grounds have been raised, we are of the view that the order of detention could be set aside on a simple ground raised in the additional grounds in H.C.M.P. No.102 of 2005, which is as follows :- On behalf of the detenu, a pre-detention representation was sent by the mother of the detenu on 12.1.2005 to the third respondent with a request to get the signature of her son and forward it to the sponsoring authority. Though the said representation reached the sponsoring authority on 13.1.2005, the sponsoring authority forwarded the same to the detaining authority with a considerable delay and ultimately, the detaining authority rejected the pre-detention representation on 31.1.2005. As a matter of fact, the detention order has been passed as early as on 17.1.2005. The reply sent by the detaining authority dated 13.1.2005 would indicate that the pre-detention representation dated 12.1.2005 was not at all considered by the authority concerned before arriving at the subjective satisfaction with regard to the order of detention. This would vitiate the order of detention as held by the Supreme Court in Suresh Kumar vs. State reported in 2004 (1) S.C.C. 394 and T.M. Syed Ali & another v. State of Tamilnadu reported in 1999 (1) M.W.N. Cri. 360. 2. In reply to the said submission, the learned Additional Public Prosecutor, on the strength of the counter filed today by the first respondent, would submit that though the pre-detention representation dated 12.1.2005 was received by the Superintendent of Central Prison, Chennai on 13.1.2005, the signature from the detenu was obtained only on 17.1.2005 since the intervening holidays were Pongal holidays and the same was forwarded to the detaining authority concerned. Hence, the details given in the counter clearly show that the Superintendent of Central Prison, Chennai has not chosen to obtain signature from the detenu on 13.1.2005 itself and forward the representation on the same day to the authority concerned, even though it was a working day. Admittedly, the pre-detention representation was sent only on 17.1.2005 after obtaining the signature from the detenu on that day. 3. Moreover, the Supreme Court in Aslam Ahmed Zahire Ahmed Shaik v. Union of India reported in 1989 S.C.C. (Cri) 554 would hold as follows:- "Reverting to the instant case, we hold that the above observation in Vijay Kumar case reported (1982) 2 SCC 43 : 1982 SCC (Cri) 348 will squarely be applicable to the facts herein. Indisputably, the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on June 16, 1988 for mere onward transmission to the Central Government has callously ignored and kept it in cold storage unattended for a period of seven days, and as a result of that, the representation reached the Government eleven days after it was handed over to the Jail Superintendent. Why the representation was retained by the Jail Superintendent has not at all been explained in spite of the fact that this Court has permitted the respondent to explain the delay in this appeal, if not before the High Court. In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the Government, which received the representation eleven days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible." These observations will squarely apply to the facts of the present case. As a matter of fact, there is no dispute in the fact that the pre-detention representation sent by the mother of the detenu dated 12.1.2005 has been received by the Superintendent of Central Prison, Chennai on 13.1.2005 and admittedly, 13.1.2005 was a working day. As a matter of fact, there is no dispute in the fact that the pre-detention representation sent by the mother of the detenu dated 12.1.2005 has been received by the Superintendent of Central Prison, Chennai on 13.1.2005 and admittedly, 13.1.2005 was a working day. Having received the pre-detention representation, there is no reason as to why the Superintendent of Central Prison, Chennai has not chosen to obtain the signature of the detenu in the representation on the very same day, especially when it is a pre-detention representation and to take prompt steps to forward the same to the Governmental authorities concerned on the same day itself. 4. On the other hand, the bald statement given in the counter that even though the pre-detention representation was received on 13.1.2005, the same was forwarded only on 17.1.2005 on the ground that there were intervening holidays would not be a convincing reason and would go to show that prompt action has not been taken. It is settled law that whenever a representation is sent to the sponsoring authority or the detaining authority requesting for revocation of the detention order or even if it is a pre-detention representation, the officials concerned must take proper steps to see that it is forwarded to and reaches the authorities concerned as early as possible. 5. In this case, the detenu has lost his right to have his pre-detention representation considered by the detaining authority on the date of passing of the detention order on 17.1.2005. If the pre-detention representation which was sent on 12.1.2005 had been considered by the detaining authority on 17.1.2005, the view taken by the detaining authority would have been different. 6. In these circumstances, the right conferred on the detenu under Article 22(5) of the Constitution of India is defeated. Hence, we are of the view that the order of detention is vitiated and the habeas corpus petition is allowed.