IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 09.03.2017 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU and THE HONOURABLE DR.JUSTICE ANITA SUMANTH H.C.P No.1835 of 2016 Usha .. Petitioner Vs
1. The State of Tamilnadu, Rep.by its Secretary of Government, Department of Prohibition and Excise (Home) Fort St.George, Chennai – 9.
2. The Commissioner of Police Chennai City Police Commissioner Office Egmore, Chennai - 8 .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India to issue a writ or order or direction or writ in the nature of the Writ of Habeas Corpus or any other appropriate writ order or direction calling for the records relating to the order of detention BDFGISSV NO.839/2016 dated 05/08/2016 passed by the 2nd respondent and set aside the same as illegal and direct the respondents to produce the detenue MURUGAN @ VAATHU MURUGAN S/O. ELLAPPAN, aged about 36 years, now confined at Central Prision, PUZHAL, Chennai, to be produced before this Hon'ble court and set at liberty.
For Petitioner : Mr.Ilayaraja Kandasamy For respondents : Mr.V.M.R. Rajentren Addl. Public Prosecutor JUDGMENT (Judgment of the Court delivered by S. NAGAMUTHU,J.,) This Habeas Corpus Petition has been filed by the wife of the detenu to issue a Writ of Habeas Corpus to produce the body of the petitioner's husband who is the detenu by name MURUGAN @ VAATHU MURUGAN S/O. ELLAPPAN, aged about 36 years, before this Hon'ble Court and set him at liberty forthwith, by calling for the records pertaining to the detention order dated 05/08/2016 made in BDFGISSV NO.839/2016 on the file of the 2nd respondent and set aside the same.
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 25.10.2016 and remarks have been called for from the detaining authority on 26.10.2016. However, the remarks have been received by the Government only on 07.11.2016, after a delay of 11 days. He adds that the file was dealt with by the Deputy Secretary concerned on 08.11.2016 and thereafter, by the Minister concerned on 24.12.2016 and the rejection letter was communicated to the detenu on 27.12.2016. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 21 intervening holidays and there is a delay of 20 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 25.10.2016 and remarks have been called for from the detaining authority on 26.10.2016. However, remarks have been received by the Government only on 07.11.2016, i.e., after a delay of 11 days and the case of the detenu was dealt with by the Deputy Secretary concerned on 08.11.2016 and thereafter, by the Minister concerned on 24.12.2016 and the rejection letter was communicated to the detenu on 27.12.2016. From the above, it is clear that in between 26.10.2016 and 07.11.2016, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 11 days. There were 21 intervening holidays, but still there is a delay of 20 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 20 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 20 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 05.08.2016, passed by the second respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case.
Speaking / Non-Speaking order Index : Yes/no Internet : Yes/no cse (S.N.J.,) (A.S.M.J.,) 09.03.2017 To
1. The Secretary of Government, The State of Tamilnadu, Department of Prohibition and Excise (Home) Fort St.George, Chennai – 9.
2. The Commissioner of Police Chennai City Police Commissioner Office Egmore, Chennai – 8.
3. The Public Prosecutor, High Court, Chennai.
S.NAGAMUTHU,J.
and
ANITA SUMANTH,J.,
cse Judgment in H.C.P.No.1835 of 2016 09.03.2017 http://www.judis.nic.in