This Habeas Corpus petition challenged a preventive detention order under Tamil Nadu Act 14 of 1982 due to unexplained delays in considering the detenu's representation. The Court held that the unexplained delays vitiated the order and quashed it.
The detention order dated 13.12.2010 was quashed, and the detenu was directed to be set at liberty forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.04.2011
CORAM:
THE HONOURABLE MR. JUSTICE S.RAJESWARAN
and THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
Habeas Corpus Petition (MD) No.28 of 2011
Jainath, W/o.Srinivsan @ Umar Farooq ... Petitioner
vs.
Rep.by its Secretary to Government,
Tuticorin.
Advisory Board, Coovam House,
Swami Sivanantha Salai,
Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the entire records connected with the detention order H.S.(M) Confdl.No.52/2010 of the Respondent No.2, dated 13.12.2010, quashing the same and direct the Respondents to produce the body and person of the petitioner's husband Srinivasan @ Umar Farooq, aged about 27 years, now confined at Palayamkottai Central Prison, at liberty.
For Petitioner : Mr.S.M.A.Jinnah For Respondents : Mr.M.Daniel Manoharan Addl.Public Prosecutor
O R D E R
(Order of the Court was made by G.M.AKBAR ALI,J.)
The petitioner, who is the wife of the detenu, has filed this petition challenging the order of detention, dated 13.12.2010, passed by the 2nd respondent under the Tamil Nadu Act 14 of 1982, branding the petitioner's husband as a "Goonda" and directing him to be detained at the Central Prison, Palayamkottai.
https://hcservices.ecourts.gov.in/hcservices/ 2.Learned counsel appearing for the petitioner submitted that though many grounds have been raised in the petition, the petition is confined to the only ground of delay in considering the representation
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made by the detenu, dated 06.01.2011, which, according to the petitioner, vitiates the detention order. Learned counsel for the petitioner submitted that there is a huge delay of 20 days on the part of the detaining authority in furnishing the remarks. He further submitted that though the concerned Minister had dealt with the file on 03.02.2011, the rejection letter came to be prepared only on 14.02.2011, after a delay of eleven days. Learned counsel submitted that the delay occurred at both the stages remain unexplained and this unexplained delay vitiates the order of detention.
3.Learned Additional Public Prosecutor submitted that there were about eleven holidays in between the date of receipt of the representation and disposal of the representation and hence there is no delay in the consideration and disposal of the representation of the detenu.
4.We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration.
5.The learned Additional Public Prosecutor produced before us the pro-forma containing dates and events. It is seen from the said pro-forma, the representation of the detenu, dated 06.01.2011, had been received by the Government on 10.01.2011. Though the Government had called for the remarks from the detaining authority on the next day, i.e. on 11.01.2011, such remarks were received by the Government only on 01.02.2011, that too, after two reminders sent on 18.01.2011 and 24.01.2011. Thus, there is 20 days delay in furnishing the remarks to the Government. Though, it is mentioned in the proforma that there were seven holidays in between 11.01.2011 and 01.02.2011, still there were 13 working days and there is no explanation for such a long delay. In the counter affidavit filed by the detaining authority, in paragraph No.10, it is only stated that the representation of the petitioner dated 06.01.2011 was considered by the Government and rejected as devoid of merits. Except this bald statement, there is no explanation for the actual delay occurred in consideration and disposal of the representation.
6.Further, even in the stage of preparation of rejection letter, there is a delay of 11 days. Though it is contended by the learned Additional Public Prosecutor that there were five holidays in between the date on which the Minister dealt with the file and the rejection letter came to be prepared, still there were six clear working days. This delay also remains unexplained in the counter filed by the detaining authority.
7.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 https://hcservices.ecourts.gov.in/hcservices/ of making a representation against the order of detention. Article 22(5) in itself does not say to whom a
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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."
8.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.
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:
5.4 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,l 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. https://hcservices.ecourts.gov.in/hcservices/
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11.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 13.12.2010, passed by the 2nd respondent in his proceedings No.H.S.(M)Confdl. No.52/2010, is quashed. The detenu is directed to to be set at liberty forthwith, unless his detention is required in connection with any other case.
Sd/Assistant Registrar (CO) / True copy / Sub Assistant Registrar To 1.The Secretary to Government, Home Prohibition and Excise Department, Government of Tamil Nadu, Chennai 600 009. 2.The District Collector and District Magistrate, O/o.the District Collector, Tuticorin District, Tuticorin. 3.The Secretary, Advisory Board, Coovam House, Omanthurar Government Estate, Swami Sivanantha Salai, Chennai. 4. The Superintendent, Cenral Prison, Palayamkottai. 5. The Joint Secretary, Public and Law and Order, Fort St., George, Chennai-9. 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. gb SR : 02.05.2011 : 4p/7c Order in H.C.P.(MD)No.28 of 2011 Dated:07.04.2011
2 issues framed by the court
Whether unexplained delay in considering and disposing of a preventive detention representation vitiates the detention order.
Whether the detaining authority satisfied the requirement of expeditious disposal under Article 22(5) of the Constitution.
Colour shows how this judgement treated each authority
District Collector vs. S.K. Hasmath BeeviRelied on¶31
District Collector vs. S.K. Hasmath Beevi, 2001(5) SCC 401 · Who else cites this
Rajammal Vs. State of Tamil NaduRelied on¶35
Rajammal Vs. State of Tamil Nadu, 1999(1) SCC 417 · Who else cites this
Sumaya Vs. The Secretary to Govt.Applied¶36
Sumaya Vs. The Secretary to Govt., 2007(2)MWN(Cr.)145
Ram Sukrya Mhatre v.R.D. TyagiReferred¶37
Ram Sukrya Mhatre v.R.D. Tyagi, 1992 Supp.(3) SCC 65 · Who else cites this
Tara Chand v. State of RajasthanReferred¶37
Tara Chand v. State of Rajasthan, 1980(2) SCC 321 · Who else cites this
Raghavendra Singh v. Supdt., Dist.JailReferred¶37
Raghavendra Singh v. Supdt., Dist.Jail, 1986(1) SCC 650 · Who else cites this
2 provisions across 2 enactments
Jainath
The State of Tamil Nadu
The District Collector and District Magistrate, Tuticorin
The Secretary, Advisory Board
S. RAJESWARAN
G.M. AKBAR ALI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
