Allowed

Palani v. the Secretary to Government

Madras HC6 Feb 2015HCP/2232/2014

Case brief

AI extract

What is this about?

This habeas corpus petition challenged the detention of Voova as a ‘Goonda’ under the Tamil Nadu Prevention of Dangerous Activities Act. The Court found that an unexplained 16-day delay in disposing of the detenu’s representation and the non-supply of relevant bail applications vitiated the detention order. The petition was allowed, and the detenu was directed to be released forthwith.

What did the court decide?

The impugned detention order is set aside, and the detenu is directed to be released forthwith, unless his presence is required in any other case.

Palani Vs the Secretary to Government — Bail and Remand | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.02.2015

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CORAM:

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THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

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HCP.No.2232/2014

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Palani
Petitioner
Vs
1.The State of Tamil Nadu by its Secretary to Government
Home, Prohibition & Excise Department, Fort St.George
Chennai 600009
2.The Commissioner of Police
Greater Chennai, Vepery, Chennai-7
Respondents

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Prayer:- This Habeas Corpus Petition is filed, under Article 226 of the Constitution of India for the relief as stated therein.

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For Petitioner : Mr.T.V.Somasundaram
For Respondents : Mr.C.Emalias, APP
ORDER

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This Habeas Corpus Petition is filed, by the father of the detenu, namely,Voova @ Vetrivel, aged 23 years, son of Palani, to issue a Writ of Habeas Corpus, to call for the records in BDFGISSV No.887/2014, dated 04.08.2014, passed by the 2nd Respondent, detaining the detenu, under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982), branding him as a “Goonda”, in the Central Prison, Puzhal, Chennai and to quash the same and to direct the Respondents to produce the body and person of the detenu and set him at liberty forthwith.

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Even though Mr.T.V.Somasundram, the learned counsel for the petitioner raised many grounds, in assailing the impugned order of detention, he confined his arguments only on two grounds,

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namely, (1) there is unexplained delay in considering and disposing of the representation of the detenu, which would vitiate the impugned detention order and (2) non-supply of copy of the bail applications filed in similar cases, referred to in the grounds of detention, for arriving at the subjective satisfaction that there is likelihood of the detenu coming out on bail, has affected the constitutional right of making an effective and purposeful representation to the authorities concerned, thereby vitiating the detention.

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According to the learned counsel for the petitioner, the representation, dated nil, has been received by the Government on 26.08.2014 and remarks were called for on the same day, on 26.08.2014. But, the remarks were received only on 10.09.2014, after a delay of 14 days. The learned counsel further submitted that though the file was submitted to the Under Secretary on the same day, i.e., on 10.09.2014, the Minster has dealt with the said file of the detenu only on 23.09.2014 and the rejection letter was sent to the detenu on 25.09.2014, with a further delay of 11 days. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 9 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 16 days in considering the representation, 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.

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Per contra, Mr.C.Emalias, the learned Additional Public Prosecutor would submit 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. However, he submitted that the copy of the bail applications was not supplied to the detenu. The learned Additional Public Prosecutor would further submit 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.

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We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and also perused the impugned order of detention and the materials placed on record.

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As per the proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu

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dated nil, which was received by the Government on 26.08.2014, remarks have been called for from the Detaining Authority on the same day itself, i.e. on 26.08.2014. But, the remarks have been received by the Government only on 10.9.2014, after a delay of 14 days and the case of the detenu was dealt with by the Minister only on 23.9.2014, after a delay of 11 days. Thereafter, the representation has been considered by the authorities concerned and rejected on 24.9.2014. From the above it is clear that in between 26.8.2014 and 23.9.2014, there is a delay of 25 days. After giving concession to the 9 intervening holidays, namely, 29.8.2014, 30.8.2014, 31.8.2014, 6.9.2014, 7.9.2014, 13.9.2014, 14.9.2014, 20.9.2014 and 21.9.2014, still there is a delay of 16 days, which remain unexplained.

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From the records produced, we find that no acceptable

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explanation has been offered for the delay of 16 days. 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.

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At this Stage, it is relevant to refer to a few decisions of the Honourable Supreme Court and the same are extracted as follows:-

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“(i) The Honourable Supreme Court in Rashid sk. v. State of West Bengal (1973-3-SCC-476), has held as follows:-

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“The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This 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.”

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(ii) The Honourable Supreme Court in Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65 held that 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

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defeats mandate of Article 22(5) of the Constitution of India.

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(iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 has held, thus:-

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The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. ......

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When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5).

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(iv) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650, the Honourable Supreme Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.

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(v) In yet another decision of the Honourable Supreme Court reported in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu), it is held that it is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay.

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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. But that does not mean that the authority is preempted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to the permissible reasons or unavoidable causes. If delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. Even the reason that the Minister was on tour and hence there was a delay of five days in disposing of the representation was rejected by the Apex Court holding that when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved, the absence of the Minister at head quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.

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(vi) In K.M.Abdulla Kunni v. Union of India, 1991 (1) SCC 476, it is held as follows:-

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“That part, 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.”

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The right to make a representation, against an order of detention is not only a constitutional right, but also a statutory right as well. Since the Constitution as also the Act, specifically, provide that the detenu shall be given the earliest

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opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities, to whom the representation is made, to dispose of the representation, at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lost both its purpose and meaning. The court, in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would totally affect the order of detention and in that situation, continued detention would become bad.

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This Court has repeatedly held that even the unexplained delay of three days is construed to be fatal to the detention order in the decision reported in 2007-2-MWN-Cr.-145-DB (Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another). This court has also held that the unexplained delay in the disposal of the representation would definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. It is well settled that there should not be supine indifference, slackness or callous attitude in considering the representation. In the decisions cited supra, the unexplained delay of even three days is held to have vitiated the order of detention.

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In so far as the case on hand is concerned, we have already pointed out that there is, totally, unexplained delay of 16 days in considering and disposing of the representation of the detenu and as such, the same would vitiate the impugned order of detention. It is needless to say that the guarantee of earliest disposal of the representation set out in Article 22(5) of the Constitution of India has been infringed.

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In so far as the other ground, namely, non-supply of copy of bail applications filed in similar cases, is concerned, it is seen from paragraph 4 of the Grounds of Detention that in a similar case in Cr.No.1025/2011 under Sections 341, 392 read with 336, 397 and 506(ii) of IPC, bail was granted in Cr.MP.No.12888/2011 and in another similar case in Cr.No.301/2009 under Sections 147, 148, 341 and 302 of IPC, bail was granted in Cr.OP.No.13843/2009. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain the copy of the said bail applications filed in similar cases. The said bail applications filed in similar case were the documents relied upon by the Detaining Authority to come to a subjective satisfaction that the detenu was likely to be released on bail. Admittedly,

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such documents have not been supplied to the detenu, as it did not form part of the Paper Book furnished by the Prosecution. Therefore, non supply of the copy of the bail applications in similar case sto the detenu would vitiate the impugned detention order.

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The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:“7. Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case.” (Emphasis added).”

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This court in Jarinabegam Vs. State of Tamil Nadu by Secretary to Government, Prohibition and Exercise Department, Chennai and another (2007-1-MLJ-Crl-18) relying upon the decision of the Honourable Supreme Court cited supra has held that non supply of a copy of the bail application to the detenu has the effect of vitiating the order or detention.

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As already analysed by us, in the facts and circumstances of the present case, non-supply of the copy of the bail applications filed in similar case to the detenu has the effect of vitiating the impugned detention order. Further, due to non supply of such a vital document, the detenu has lost valuable right to make an effective representation to the authorities concerned.

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Therefore, in the light of the above said principles laid down by the Honourable Supreme Court and this Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.

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In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.

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Sd/-
Asst.Registrar
/true copy/
Sub Asst. Registrar
Srcm
To:
1.The Secretary to Government,
Home, Prohibition & Excise Department,
Fort St.George, Chennai 600009
2. The Commissioner of Police, Chennai Police,
Vepery, Chennai
3. The Superintendent
Central Prison, Puzhal,
Chennai
4. The Public Prosecutor, Madras High Court, Madras
5. The Joint Secretary to Government
Public (Law and order) Fort Saint George,
Chennai
HCP.No.2232/2014
RSK (CO)
kk 13/3

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Palani v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

Palani v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

What the court decided

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