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2010 DIGILAW 4158 (MAD)

Anjalai v. Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai

2010-09-15

ARUNA JAGADEESAN, K.N.BASHA

body2010
Judgment :- K.N. Basha, J. The petitioner is the Mother of the detenue. The petitioner has come forward with this Habeas Corpus Petition seeking for the relief of quashing the detention order dated 13.04.2010, slapped on her son branding him as “Goonda” as contemplated under the Tamil Nadu Prevention of dangerous activities of Boot leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982). 2. Mr. G.R.Swaminathan, learned counsel for the petitioner would submit that though there are several grounds raised by the petitioner, he is confined only to the prime ground to the effect of delay in considering the representation of the detenu. It is contended by the learned counsel for the petitioner that the detenu has sent his representation dated 19.04.2010 and the same was received on 21.04.2010 and remarks were called for on 22.04.2010 and thereafter no reminders were sent and ultimately remarks have been received on 05.05.2010 and as such there is a delay in even calling for the remarks and for receiving the remarks and as such there is a delay of 12 days at the first stage. It is contended that there is also a further delay in considering and disposing of the representation. As the authority concerned after the receipt of the remarks, the under Secretary and the Joint Secretary have dealt with the remarks on 06.05.2010 and the file has been sent to the Hon'ble Minister for Law on 07.05.2010 and the rejection letter was prepared on 13.05.2010 and the rejection letter was sent to the detenu on 14.05.2010 and ultimately the same was served on the detenu on 15.05.2010 and as a result there is a further delay of eight days in considering the representation and there is no explanation for the same and as such the impugned order of detention is vitiated and the same is liable to be quashed. 3. In support of the contention, the learned counsel for the petitioner is also placed reliance on the decision of this Court in Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another reported in 2007 (2) MWN (Cr.) 145 (DB). 4. 3. In support of the contention, the learned counsel for the petitioner is also placed reliance on the decision of this Court in Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another reported in 2007 (2) MWN (Cr.) 145 (DB). 4. Per contra, the learned Additional Public Prosecutor would submit that for receiving the remarks there is a delay of 12 days and there were intermittent holidays for four days and as such there is a delay of only eight days. It is further contended that thereafter there is no delay in considering the representation, as the file was dealt with by the Under Secretary, Joint Secretary on 06.05.2010 and the file was sent to the Hon'ble Minister for Law on 07.05.2010 and the rejection letter was prepared on 13.05.2010 and the same was sent to the detenu on 14.05.2010 and served on the detenu on 15.05.2010 and as such there is a delay of eight days and there are intermittent holidays of two days and hence there is a delay of only six days. It is further contended that there is no deliberate delay on the part of the authorities concerned to consider the representation of the detenu. It is contended that such a delay is not fatal to the impugned detention order, as the authorities concerned are dealing with the file right from the date of receipt of the remarks. 5. We have given our careful and anxious consideration to the rival submissions put forward by either side and perused the impugned order of detention. 6. At the outset, it is to be stated by this Court that there is an inordinate delay in considering the representation of the detenu at two different stages. It is seen that there is a delay in calling for the remarks and receiving the remarks and there is also further delay in considering and disposing of the representation of the detenu. The perusal of the proforma produced by the learned Additional Public Prosecutor would reveal that the detenu sent his representation dated 19.04.2010 and the same was received on 21.04.2010 and thereafter remarks have been called for on 22.04.2010 and no reminders have been sent by the authorities and ultimately the remarks were received on 05.05.2010. The perusal of the proforma produced by the learned Additional Public Prosecutor would reveal that the detenu sent his representation dated 19.04.2010 and the same was received on 21.04.2010 and thereafter remarks have been called for on 22.04.2010 and no reminders have been sent by the authorities and ultimately the remarks were received on 05.05.2010. Therefore, there is a delay of 12 days in receiving the remarks by the authorities concerned. It is pointed out by the learned Additional Public Prosecutor that four days are intermittent holidays and if deducting four days, even then there is a delay of eight days. 7. We are of the considered view that there is absolutely no explanation whatsoever forthcoming from the authorities concerned for such a delay. It is also pertinent to note that there is a further delay in considering the representation, as the file was put up to the Under Secretary and Joint Secretary on 06.05.2010 and the same was placed before the Hon'ble Minister for Law on 07.05.2010 and letter of rejection was prepared only on 13.05.2010 and the rejection letter was served on the detenu on 15.05.2010 and as a result, there is a further delay of eight days in considering and disposing of the representation of the detenu. It is seen at the second stage there were two intermittent holidays and if we give concession for two days, there is a delay of six days. Therefore, there is totally 14 days delay in considering the representation of the detenu. But there is absolutely no explanation whatsoever forthcoming from the authorities concerned for such inordinate delay. 8. At this Stage, it is relevant to refer few decisions of the Hon'ble Apex Court and the same are as follows: “(i) The Honb'le Apex Court in Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65 held that 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. (ii) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650 , the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. (ii) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650 , the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. (iii) In yet another decision of the Hon'ble Apex Court reported in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu), it is held that 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 Constitution for the decision to be taken on the representation, the words “as 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 hat does not mean that the authority is preempted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to the permissible reasons or unavoidable causes. If delay was caused on account of any 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. Even the reason that the Minister was on tour and hence there was a delay of five days in disposing of the representation was rejected by the Apex Court holding that when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved, the absence of the Minister at head quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen. (iv) In K.M.Abdulla Kunni v. Union of India, 1991 (1) SCC 476 , it is held as follows:- “That part, it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. (iv) In K.M.Abdulla Kunni v. Union of India, 1991 (1) SCC 476 , it is held as follows:- “That part, it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” 9. The Principles laid down by the Hon'ble Apex Court in the Catena of decisions cited supra makes it crystal clear that the unexplained delay in the disposal of the representation would definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. As far as the case on hand is concerned, we have already pointed out that there is inordinate and unexplained delay of fourteen days in considering the representation of the detenu and as such, the same would vitiate the impugned order of detention. Therefore, in view of the above observations, we are constrained to quash the impugned order of detention passed by the second respondent. 10. Accordingly, the detention order passed by the second respondent in Detention Order P.D.O.7/2010 dated 13.04.2010, is hereby quashed and the detenu is set at liberty forthwith, unless his detention is required in connection with any other case.