S. Chinnathami v. State of Tamil Nadu, rep. by its Secretary to Government, Prohibition and Excise Department, Chennai & Another
2006-10-19
G.RAJASURIA, P.K.MISRA
body2006
DigiLaw.ai
Judgment :- (This habeas corpus petition is preferred under Article 226 of the Constitution of India to call for the records pertaining to the order of detention dated 30.11.2005 passed by the second respondent in HS(M)Confdl.No.51/2005 and to quash the same.) G. Rajasuria, J. This habeas corpus petition has been filed for issuance of writ of habeas corpus, to call for the records pertaining to the order of detention dated 30.11.2005 passed by the second respondent in HS(M)Confdl.No.51/2005 and to quash the same. 2. The facts giving rise to the filing of this habeas corpus petition as stood exposited from the averments in the affidavit of the petitioner accompanying the petition and other related papers annexed there with, including the arguments submitted on the side of the learned counsel for the petitioner, could be portrayed thus: Chinnathambi, the petitioner herein is the father of the detenu Joseph aged 20 years who is under detention as per the second respondent's order dated 30.11.2005 ever since 1.12.2005. The order of detention was passed by the second respondent without application of mind. The detenu did not indulge in any activities prejudicial to the maintenance of public order and public health. The family members of the detenu were not informed by the detaining authority and hence the order of detention is vitiated. The detenu is confined in the central prison Palayamkottai based on such order. The detenu's father's representation to the second respondent was not responded to by the latter. Accordingly he prayed for quashing the order of detention. 3. Per contra, the warp and woof of the case of the respondents could be summarised thus: The detenu Joseph was involved in a case in Crime No.1071 of 2005 dated 05.08.2005 of Thoothukudi South Police Station under Sections 148, 149, 452, 333, 332, 427, 506(2) IPC and Section 3 of TNPP(PDL) Act, for being a member of the unlawful assembly and in trespassing into the Government Tass Mark wine shop license No.9960 and attacking one Sudalaimuthu, the bar attender and causing grievous injuries to him in addition to having caused damages to the wine shop properties.
Police also registered a case as against the same detenu in Crime No.1095 of 2005 on 11.08.2005 for the offence under Section 148, 149, 449, 302 and 506(ii) IPC, in view of he having been a member of the unlawful assembly and having trespassed into a hotel and murdering Thiru Rajavel. The detaining authority set out the grounds on which he passed such detention order. The collector also in the grounds of detention speaks about the case in Crime No.1102 of 2005 which was registered under Sections 341, 427, 506(ii) IPC as against the detenu herein and others and also about the registration of the case by the Police in Crime No.731 of 2002 of Thoothukudi South Police Station as against the same detenu. The respondents therefore, object to the quashing of the detention order. 4. The point for consideration is as to whether there is any justifiable ground for quashing the impugned order of detention by the second respondent herein? 5. Trite, the proposition of law, is that in preventive detention matters, the court cannot go into the factual aspect of the matter and sit in Judgment over the subjective satisfaction of the detaining authority. 6. However, the court being the guardian of the citizens rights, should necessarily look into the fact as to whether procedural formalities have been complied with relating to preventive detention with special reference to the furnishing of copies to the detenu and thereby enabling him or on his behalf to make effective representation as against the detention to the authorities concerned. 7. While advancing the arguments, the learned Advocate for the petitioner would draw the attention of this Court relating to the fact of the detaining authority himself having passed a corrigendum dated 08.12.2005 issued relating to the detention order dated 30.11.2005. In the detention order in the last paragraph, it is stated as under: "I hereby direct that the said Thiru. Jeseph, aged 19/05 S/o.Chinnathambi, 6/324, Ganapathy Nagar, Thalamuthu Nagar, Thoothukudi, Thalamuthu Nagar P.S.Limit, Thoothukudi, Thoothukudi South P.S.Limits, Thoothukudi Taluk, Thoothukudi District, is a "Goonda" (emphasis supplied) 8. However, in the Corrigendum dated 08.12.2005, the detaining authority ordered for deleting the following words: "Thoothukudi South Police Station" 9. The learned Government Advocate would develop his argument that the detaining authority without knowing actually where the detenu resides, passed the detention order without application of mind.
However, in the Corrigendum dated 08.12.2005, the detaining authority ordered for deleting the following words: "Thoothukudi South Police Station" 9. The learned Government Advocate would develop his argument that the detaining authority without knowing actually where the detenu resides, passed the detention order without application of mind. Such an argument fails to carry conviction with us for the reason that the correct Police Station limit within which he resides is found mentioned in the detention order dated 30.11.2005 and in addition to that, the name of one other police station was also found specified. In such case, the petitioner cannot try to make a mountain out of a molehill and attempt to wriggle out of his detention. Admittedly, the translation of the detention order dated 30.11.2005 would contain only the relevant police station within whose limit, the detenu resides and it does not refer to "Thoothukudi South Police Station". Hence, there is nothing to show that the detenu or his father in this case was prejudiced in making effective representation. 10. During the hearing, it transpired that the detenu was served with relevant papers along with detention order. 11. Even though the order of detention cannot be quashed on such ground raised by the counsel for the petitioner, we feel, the order of detention is liable to be quashed on account of inordinate delay in communicating the result of the representation. From the materials available on record, it is apparent that the detenu made a representation on 05.01.2006 which was received by the authority on 06.01.2006 and thereafter such representation was dealt with by the Minister concerned on 23.01.2006. However, the rejection letter was prepared only on 30.01.2006 and subsequently it was served on the detenu on 03.02.2006. Even though 28.01.2006 and 29.01.2006 were holidays, being Saturday and Sunday, there is no explanation as to why it took 7 days to prepare the rejection letter, which was more or less a clerical act. Opportunity available to make a representation obviously means that such representation has to be considered without any unreasonable and unnecessary delay and the result of such consideration should also be communicated as expeditiously as possible, without any unnecessary delay. In the decision reported in 2005 (4) CTC 17 (Latha vs. The Secretary to the Government), a Division Bench of this Court in paragraph 5 has observed: "5....
In the decision reported in 2005 (4) CTC 17 (Latha vs. The Secretary to the Government), a Division Bench of this Court in paragraph 5 has observed: "5.... The Courts have held that three days' time at every stage of disposal of the representation would be reasonable and beyond the same, the delay cannot be considered to be reasonable unless it is properly explained. It is also relevant to note that as observed earlier, unless the result of the Government's decision is communicated to the detenu, it cannot be claimed that the mandate prescribed in Article 22(5) of the Constitution of India has been fulfilled effectively. It is the constitutional right of detenu to have his representation considered and hence, immediate action should be taken by the authorities concerned. It is well settled that the consideration of representation includes communication of the result of the same to the detenu within a reasonable time is a sufficient compliance of Article 22(5) of the Constitution of India. In other words, after proper consideration without delay the result has to be communicated to the detenu at the earliest point of time meaning thereby within a reasonable time......" In an unreported decision of this Court in HCP (MD) No.274/2005, decided on 17.10.2005, it has been held as follows. "5.... Law is well settled that in matters relating to preventive detention, the authorities concerned are to act with utmost dispatch while dealing with the representation of the detenu. In the present case, there is undue and unexplained delay while communicating the order of rejection, for which no explanation is forthcoming. In such view of the matter, the order of detention is liable to be quashed." 12. In such view of the matter, even though the representation was disposed of early enough, the subsequent unnecessary delay in communicating the result make the continued detention vulnerable. Accordingly, on this ground, the detention order in HS(M) Confdl.No.51/2005, dated 30.11.2005, passed by the second respondent is quashed and the detenu is directed to be released forthwith, unless his presence is required in connection with any other case.