IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 03.04.2017 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE DR.JUSTICE ANITA SUMANTH H.C.P No.1851 of 2016 J. Sundari .. Petitioner Vs
1. State rep by Secretary to Government, Home. Prohibition and Excise Department, Secretariat, Chennai – 600 009
2. The District Collector, District Magistrate, Kancheepuram District, Kancheepuram .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus or any other appropriate Writ, Order or Direction in the nature of a Writ to call for the records in BCDFGISSSV No.52/2016 passed by the second respondent on 19.08.2016 set aside the same and direct the respondents to produce the Magesh, S/o Jothi, aged 26 years, who is now detained in Central Prison, Puzhal, Chennai-66.
For Petitioner : Mr.S. Swamidoss Manokaran For respondents : Mr.V.M.R. Rajentren Additional Public Prosecutor ORDER (Order of the Court was made by S. NAGAMUTHU,J.,) This Habeas Corpus Petition has been filed by the mother of the detenu to issue a Writ of Habeas Corpus to call for the entire records relating to petitioner's son's detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 19.08.2016 on the file of the second respondent herein made in proceedings in BCDFGISSSV No.52/2016 and quash the same as illegal and consequently direct the respondents herein to produce the body and person of the said detenu before this court and thereafter set him at liberty from the Central Prison, Puzhal, Chennai.
2. Even though the learned counsel for the petitioner raised many grounds in assailing the impugned order of detention in the petition, he confined his arguments only to the ground of delay in considering the representation of the detenu. According to the learned counsel for the petitioner, the representation of the detenu, has been received by the Government on 29.08.2016 and remarks have been called for from the detaining authority on 30.08.2016. However, the remarks have been received by the Government only on 09.09.2016, after a delay of 08 days. He adds that the file was dealt with by the Minister concerned on 13.10.2016 and the rejection letter was communicated to the detenu on 13.10.2016. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 16 intervening holidays and there is a delay of 25 days, which remains unexplained. The unexplained delay in considering the representation of the detenu vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Rajammal Vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.
3. Resisting the contention of the learned counsel for the petitioner, the learned Additional Public Prosecutor had submitted that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. The learned Additional Public Prosecutor had further submitted that there was no deliberate delay on the part of the authorities concerned to consider and dispose of 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 representation and therefore, he prayed for dismissal of the petition.
4. We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.
5. As per the Proforma submitted by the learned Additional Public Prosecutor, the representation of the detenu was received by the Government on 29.08.2016 and remarks have been called for from the detaining authority on 30.08.2016. However, remarks have been received by the Government only on 09.09.2016, i.e., after a delay of 8 days and the case of the detenu was dealt with by the Minister concerned on 13.10.2016 and the same was rejected on 13.10.2016. From the above, it is clear that in between 30.08.2016 and 09.09.2016, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 25 days. There were 16 intervening holidays, but still there is a delay of 25 days, which remain unexplained.
6. It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of 25 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.
7. In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows:
"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."
8. As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here 25 days delay has not been properly explained at all.
9. Further, in a recent decision in Ummu Sabeena vs. State of Kerala - 2011 STPL (Web) 999 SC, the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.
10. In the light of the above fact and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the detenu.
11. Accordingly, the habeas corpus petition is allowed and the detention order dated 19.08.2016, passed by the second respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless her presence is required in connection with any other case.
Speaking order/non-speaking order Index : Yes/no Internet : Yes/no sr/jer (S.N.J.,) (A.S.M.J.,) 03-04-2017 To
1. The Secretary to Government, State of Tamil Nadu, Home. Prohibition and Excise Department, Secretariat, Chennai – 600 009
2. The District Collector, District Magistrate, Kancheepuram District, Kancheepuram
3. The Public Prosecutor, High Court, Chennai.
S.NAGAMUTHU,J.,
And
ANITA SUMANTH,J.,
sr/jer H.C.P.No.1851 of 2016 03-04-2017 http://www.judis.nic.in