Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
06. 01.2014 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.999 of 2013 Regina Begam .. Petitioner Vs 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tiruvarur District. 3.The Superintendent of Prison, Tiruchirappalli Central Prison, Trichy District. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records, pertaining to the detention order of the second respondent in C.O.C.No.24/2013, dated 17.07.2013 and quash the same and direct the respondents to produce the detenu, Marjith Alikhan, son of Rukkun Batcha, aged about 22 years, detained in Tiruchirappalli Central Prison, before this Court and set him at liberty forthwith. !For petitioner ... Mr.R.Alagumani ^For respondents ... Mr.C.Ramesh Additional Public Prosecutor :ORDER
(Order of the Court was made by S.TAMILVANAN,J) This Habeas Corpus Petition has been filed seeking to call for the records relating to the order of the second respondent, dated 17.07.2013, made in C.O.C.No.24/2013, and quash the same, and to produce the detenu, Marjith Alikhan, son of Rukkun Batcha, aged about 22 years, confined in the Central Prison, Tiruchirappalli, before this Court and to set him at liberty.
2. The petitioner has stated that the second respondent passed the impugned detention order, dated 17.07.2013, under Section 3(1) of 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 of 1982) read with the orders issued by the Government in G.O.(D) No.89, Home, Prohibition and Excise (XVI) Department, dated 18.04.2013 under Section 3(2) of the said Act, directing the detention of Marjith Alikhan, in the Central Prison, Tiruchirappalli, terming him as a 'Goonda'.
3. Even though various grounds has been raised by the petitioner, in the present Habeas Corpus petition, while challenging the impugned detention order, dated 17.07.2013, learned counsel appearing on behalf of the petitioner submitted that the said detention order, is liable to be set aside, merely on the ground of delay in the disposal of the representation, dated 27.08.2013, made on behalf of the detenu.
4. It was also pointed out that the representation made on behalf of the detenu, dated 27.08.2013, was received, on 03.09.2013, and the remarks were called for, on 04.09.2013. The remarks were received, only on 24.10.2013, after a delay of 20 days, out of which 7 days were Government holidays. As such, there has been an actual delay of 13 days in dealing with the representation made on behalf of the detenu.
5. Learned counsel for the petitioner submitted that the inordinate delay was occurred in the disposal of the representation, made on behalf of the detenu, that would vitiate the detention order passed by the Detaining Authority.
6. Learned Additional Public Prosecutor, appearing on behalf of the respondents submitted that the Habeas Corpus Petition, filed on behalf of the detenu, is premature in nature, hence the Habeas Corpus Petition itself is not legally maintainable.
7. In support of his contention, he relied on the decision of the Hon'ble Supreme Court, in D.M.Nagaraja Vs. Government of Karnataka and others reported in (2011) 10 SCC215 to state that there is no obligation on the part of the Detaining Authority or the State Government to dispose of the representation made on behalf of the petitioner, before the order of detention is approved.
8. The Hon'ble Apex Court, as well as the various High Courts, have made it clear in a number of decisions that the delay in disposing of the representation would vitiate the order of detention in view of Article 22(5) of the Constitution of India and the personal liberty guaranteed under Articles 19 and 21 of the Constitution of India. Some of them are as follows:
1. Binod Singh Vs. District Magistrate, Dhanbad (AIR1986SC2090. 2.Rivadeneyta Ricardo Agustin Vs. Government of the NCT of Delhi (1994 SCC (Cri) 354). 3.Rajammal vs. State of Tamil nadu and another (1999 SCC (Cri) 93). 4.Senthil Kumar vs. District Magistrate and District Collector (2008 (2) MLJ (Crl.) 1071). 5.Jakkulin Vs. State of Tamil nadu (2008 (2) MLJ (Crl.) 1571). 6.State of Tamil nadu rep. by its Secretary to Government, Home, Prohibition and Excise (ix) Department, Secretariat, Chennai and another (2009(1) MWN (Cr.) 400 (DB). 8.1. In Prabhu Dayal Deorah Vs. District Magistrate, Kamrup and others, (AIR1974SC183, the Hon'ble Supreme Court has held that the constitutional requirement of Article 22(5) will not be satisfied, unless the detenu is given the earliest opportunity to make a representation against the detention order. Thus, it is made clear that the State has a concomitant and corresponding duty to dispose of the representation, without any delay. The Hon'ble Supreme Court has repeatedly held that the State Government is bound to consider the representation made on behalf of the detenu, at the earliest possible time, as it is a mandatory obligation cast on it, as per Clause (5) of Article 22 of the Constitution of India. 8.2. In Ramamurthy Vs. The State of Tamil Nadu (2006(4) CTC181, this Court set aside the order of detention on the ground of delay, considering the delay in passing the order on the representation made on behalf of the detenu. 8.3. A Constitutional Bench of the Hon'ble Supreme Court, in Jayanarayan Sukul Vs. State of West Bengal (1970 (1) SCC219, it has been held as follows:- ".The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril, immediate action should be taken by the relevant authorities.". 8.4. The Hon'ble Supreme Court, in Mahesh Kumar Chauhan alias Banti Vs. Union of India & Others [(1990) 3 SCC148, while dealing with a case of preventive detention, has observed that an undue and unexplained delay in the disposal of the representation of the detenu is in violation of Article 22(5) of the Constitution of India, rendering the detention order invalid. 8.5. In Rama Dhondu Borade Vs. V.K.Saraf, Commissioner of Police and Others [(1989) 3 SCC173, the Honb'le Supreme Court has observed that a representation of a detenu, whose liberty is in peril, should be considered and disposed of, as expeditiously as possible. The continued detention will render itself impermissible and invalid as being violative of Article 22(5) of the Constitution of India. If any delay occurs in the disposal of a representation, such delay should be explained, by the appropriate authority, to the satisfaction of the Court. 8.6. In Venkatesan @ Maya Venkatesan (2007 (1) MLJ (Crl.) 1176), it has been held that the Government is bound to explain the delay, if any, in disposing of the representation made on behalf of the detenu. It is not enough to say that the delay was very short. The test is not the duration or range of the delay, but how it is explained by the Authority concerned, has to be considered. 8.7. In Sumaiya Vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9 and another (2007(2) MWN (Cr.) 145 (DB)), this Court held that an unexplained delay of three days in the disposal of the representation, made on behalf of the detenu, would be sufficient to set aside the detention order. 8.8. In G.Kalaiselvi Vs. The State of Tamil Nadu (2007(5) CTC657, a Full Bench of this Court had held that it is well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity for making a representation and such right of the detenu, obviously, encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay, and the result of such representation should also be communicated without any delay. 8.9. In Rekha Vs. State of Tamilnadu (2011(5) SCC244, it has been held that the personal liberty of a person is protected, under Article 21 of the Constitution of India. As it is so sacrosanct and so high in the scale of constitutional values, there is an obligation on the part of the Detaining Authority, while passing the impugned order of detention, to consider whether the procedures established by law have been meticulously followed. The procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. 8.10. In K.M.Abdulla Kunhi Vs. Union of India, (1991(1) SCC476, it has been held that any unexplained delay in the disposal of the representation made on behalf of the detenu would be a breach of constitutional imperative and it would render the continued detention impermissible and illegal. 8.11. In fact, this Court, in its order, dated 9.11.2011, in Smt.Sowdun Bivi Vs. The State of Tamilnadu (H.C.P.No.108 of 2011), has clarified the position relating to the issue regarding the consideration of the representation made on behalf of the detenu, referring to the Full Bench decision of this Court, in Rajammal Vs. State of Tamil Nadu and another (1999 AIR SCW139. Thus, it is clear, from the catena of cases decided by the Hon'ble Supreme Court, that there is an obligation cast on the Detaining Authority, as well as the State Government, to consider the representation made on behalf of the detenu, as early as possible, as per the mandate enshrined in Clause (5) of Article 22 of the Constitution of India. 8.12. In Rashid sk. v. State of West Bengal, reported in 1973 (3) SCC476 the Hon'ble Supreme Court has held that the right to represent and to have the representation considered at the earliest, flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion. 8.13. In Ram Sukrya Mhatre v. R.D.Tyagi and Others [1992 Supp (3) SCC65, the Hon'ble Supreme Court has held thus;- "....the right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal not only by the State Government under the relevant provision of the Statute, but also by the Central Government. But in each case it is one of fact to be ascertained whether the Central Government or State Government, as the case may be, has caused delay due to negligence, callous inaction, avoidable red-tapism and undue protraction by the authorities concerned. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India.". 8.14. In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others, reported in 1989 SCC (Crl) 554, the Hon'ble Supreme Court has held that an avoidable and unexplained delay in the disposal of the representation would result in rendering the continued detention of the detenu illegal and constitutionally impermissible. 8.15. In Tara Chand v. State of Rajasthan and Others [1980 (2) SCC321 and Raghavendra Singh v. Superintendent, District Jail, Kanpur & Others [(1986) 1 SCC650, the Hon'ble Apex Court has held that any inordinate and unexplained delay on the part of the Government, in considering the representation, renders the detention illegal. 8.16. In Rajammal v. State of Tamil Nadu & Others [1999 (1) SCC417, 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. 8.17. In K.M.Abdulla Kunhi v. Union of India [(1991) 1 SCC476, it has been held as follows:- "..... 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.". 8.18. In Ummu Sabeena Vs. State of Kerala [2011 STPL (Web) 999 SC]., the Hon'ble 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.
9. In the present case, the delay caused in the disposal of the representation, dated 27.08.2013, made on behalf of the detenu, has not been properly explained by the authorities, the respondents herein. The detention order is not punitive in nature and the detenu has to face the trial before the appropriate Court and the prosecution has to establish the alleged guilt against the accused beyond reasonable doubt, in case of imposing punishment. When there is violation of mandatory provisions by the authority it would vitiate the detention order, as held by the Hon'ble Apex Court in various decisions.
10. In such circumstances, in the light of the decisions cited supra, the detention order, dated 17.07.2013, passed by the second respondent, is set aside and the Habeas Corpus Petition stands allowed. The detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other case or cause. smn2 To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tiruvarur District. 3.The Superintendent of Prison, Tiruchirappalli Central Prison. 4.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.