BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:25/06/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA
H.C.P.(MD)No.151 of 2009
C.Jeyalakshmi, W/o.Singaram ... Petitioner
vs.
1.State of Tamil Nadu,
Rep.by its Secretary to Government,
Prohibition and Excise Department,
Fort St.George, Chennai-600 009.
2.The District Collector &
District Magistrate,
Trichy District, Trichy. ... Respondents
Prayer
Petition under Article 226 of the Constitution of India praying for
issuance of a Writ of Habeas Corpus calling for the records relating to the
Detention Order passed by the 2nd Respondent in Cr.M.P.No.03/2009, dated
29.01.2009, quashing the same and setting the Detenu Murugesan @ Arayee
Murugesan, Son of Singaram now detained at Central Prison, Trichy, at liberty.
!For Petitioner ... Mr.N.Anand Kumar
^For Respondents ... Mr.P.N.Pandithurai,
Addl.Public Prosecutor.
:ORDER
(Order of the Court was made by R.MALA,J)
In this Habeas Corpus Petition, the Petitioner - mother of the Detenu
challenges the order of detention passed by the 2nd Respondent, whereby the the
Detenu was detained, branding him as a "Goonda", under the provisions of 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 (in short "Tamil Nadu Act 14/1982).
2.The Detenu had earlier come to adverse notice in two cases, as detailed
below.
Sl.No. Police Station and Crime No. Provisions of Law
1 Samayapuram P.S.Cr.No.3/2009 U/s.392, 506(ii) IPC
2 Sirugamani P.S.Cr.No.1/2009 U/s.385, 506(ii) IPC
The ground case in Crime No.4/2009 under sections 392 and 506(ii) IPC on the
file of Kallakkudi Police Station relates to the occurrence on 04.01.2009. On
being satisfied that the Detenu is habitually committing crimes and also acting
in a manner prejudicial to the maintenance of public order and as such he is a
"Goonda" and if the Detenu comes out on bail he will indulge in future
activities, which will be prejudicial to the maintenance of public order, the
3rd Respondent passed the impugned order of detention.
3.Even though several contentions were raised and argued as well, the
learned counsel for the Petitioner confined his arguments only on the question
of delay in consideration and disposal of the representation. Learned counsel
for the petitioner submitted that unexplained delay in consideration and
disposal of the representation would vitiate the Detention Order.
4.We have heard the learned Additional Public Prosecutor. Learned
Additional Public Prosecutor submitted that there were a number of public
holidays and the authorities have explained the delay and as such there is no
unexplained delay vitiating the detention order.
5.Article 22(5) of the Constitution of India casts an imperative duty upon
the authorities to communicate the grounds of detention and also afford
reasonable opportunity to the detenu so as to afford him the right of making
representation. Such right of making representation is inclusive of the right
of consideration and disposal of the representation within a reasonable time.
Any unexplained or inordinate delay in the consideration of the representation
has the effect of vitiating the Detention Order.
6.In District Collector vs. S.K.Hasmath Beevi, reported in 2001(5) SCC
401, the Supreme Court has held as follows:
"Article 22(5) gives the detenu the right to make a representation against
an order of detention and such right must be afforded as expeditiously as
possible. In other words, the detenu must be afforded the earliest opportunity
of making a representation against the order of detention. Article 22(5) in
itself does not say to whom a representation could be made or who will consider
the representation, but because of the language of Article 22(5) and because of
the fact that an order of detention affects the liberty of a citizen, without
laying down any hard and fast rule as to the measure of time taken by the
appropriate authority for considering a representation, it should be considered
and disposed of by the Government as soon as it is received."
7.In Rajammal Vs. State of Tamil Nadu, reported in 1999(1)SCC 417, the
Apex Court has held that the representation was received by the Secretary to the
Government on 05.02.1998, the Government which received the remarks from
different authorities submitted the relevant files before the Under Secretary
for processing it on the next day. Thereafter, the files were submitted to the
Minister, who received it on tour. Finding that there was no valid explanation
for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay
has vitiated the detention.
8.In the instant case, the chart furnished by the learned Additional
Public Prosecutor discloses that the representation, dated 06.02.2009, was
received by the Government on 10.02.2009. Though remarks were called for from
the Detaining Authority immediately on the next day i.e. on 11.02.2009, such
remarks were received by the Government only on 23.02.2009, after a delay of
twelve days. Further, though the Minister for PWD and Law dealt with the File
on 24.02.2009, the rejection order came to be prepared only on 04.03.2009, after
a delay of eight days. Learned Additional Public Prosecutor submitted that
there were three public holidays in between 11.02.2009 and 23.02.2009 and two
public holidays in between 24.02.2009 and 04.03.2009. Even excluding the public
holidays, in our considered view, there is unexplained delay in consideration
and disposal of the representation which would have the effect of vitiating the
detention order.
9.Contending that even a delay of three days in disposal of representation
would have the effect of vitiating order of detention, learned counsel for the
petitioner has drawn our attention to the decision of this Court in
2007(2)MWN(Cr.)145 - Sumaya vs. The Secretary to Govt., wherein the Division
Bench has observed as under in paragraphs 5.3 and 5.4 as under:
"5.3.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, vide Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp.(3)SCC
65.
5.4.Any inordinate and unexplained delay on the part of the Government in
considering the representation renders the detention illegal, vide Tara Chand v.
State of Rajasthan, 1980(2) SCC 321; and Raghavendra Singh v. Supdt.,
Dist.Jail, 1986(1) SCC 650."
We are in respectful agreement with the view taken by the Division Bench.
10. Law is well settled that since personal liberty of a person is
involved in the preventive detention, the authorities concerned are required to
deal with the representation with utmost dispatch and promptitude, without any
unnecessary delay. Right to expeditious disposal of the representation by the
State Government includes the right to communication of the result of the
representation. Further, preparation of rejection letter is only a ministerial
work, which does not require any judicious consideration. The unexplained
delay in the consideration and disposal of the representation would have the
effect of vitiating the detention order and accordingly the detention order is
liable to be quashed.
11.Accordingly, the Habeas Corpus Petition is allowed and the impugned
order of detention in Cr.M.P.No.03/2009, dated 29.01.2009, passed by the 2nd
respondent, is quashed. The Detenu Murugesan @ Arayee Murugesan is directed to
be released forthwith, unless his presence is required, in accordance with law,
in connection with any other case.
gb
To:
1.The Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St.George, Chennai-600 009.
2.The District Collector & District Magistrate,
Trichy District, Trichy.
3.The Superintendent, Central Prison, Madurai
4.The Joint Secretary to Government
Public (Law & Order) Department,
Fort St.George, Chennai - 9
5.The The Public Prosecutor,
Madurai Bench of Madras High Court, Madurai
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