Allowed

Nagajothi v. State of Tamil Nadu Rep. by

Madras HC1 Aug 2016HCP/3133/2015

Case brief

AI extract

What is this about?

High Court quashed the detention order of the petitioner's husband under the Tamil Nadu Act 14 of 1982. The Court held that the 8-day unexplained delay by the Government in considering the detainue's representation violated Article 22(5)'s requirement to act 'as soon as may be', rendering continued detention illegal.

What did the court decide?

Detention order dated 30.10.2015 quashed; detenu set at liberty forthwith unless required for other cases.

Nagajothi Vs State of Tamil Nadu Rep. by — Criminal Trial and Appeal | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.08.2016

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Coram:

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THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and

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THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN

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H.C.P.No.3133 of 2015

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Nagajothi .. Petitioner vs. 1.The State of Tamil Nadu rep. by its Secretary of State Prohibition and Excise Department, St.George Fort, Chennai-600 009.

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2.The Commissioner of Police, City Police Office Campus, Coimbatore District. .. Respondents

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Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus, calling for the records relating to the detention of the petitioner's husband Sakthivel @ Mandaiyan Son of Rajan aged about 23 years branded as "Goonda" and confined in Central Prison, Coimbatore vide the order of the 2^nd respondent in Memo C. No.53/G/IS/2015 dated 30.10.2015 and quash the same as illegal and set the petitioner at liberty and thus render justice.

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For petitioner : M/S.A.Charles

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For Respondents : Mr.A.N.Thambi Durai, 1 and 2 Addl. Public Prosecutor (Crl.side)

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The petitioner is the wife of the detenu. The detenu has been branded as a "Goonda" under the Tamil Nadu Act 14 of 1982 and detained under the order of the 2nd respondent passed in C.No. 53/G/IS/2016 dated 30.10.2015.

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https://hcservices.ecourts.gov.in/hcservices/

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Even though the petitioner has raised many grounds in assailing the impugned order of detention in the petition, the learned counsel 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 22.04.2016 and remarks have been called for from the detaining authority on 25.04.2016. However, the remarks have been received by the Government only on 05.05.2016, after a delay of 12 days. He adds that the file was dealt with by the Minister concerned on 18.05.2016 and the rejection letter was communicated to the detenu on 23.05.2016. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 2 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 8 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.

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Resisting the contention of the learned counsel for the petitioner, the learned Additional Public Prosecutor appearing for the respondents 1 and 2 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.

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We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.

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As per the Proforma submitted by the learned Additional Public Prosecutor, the representation of the detenu was received by the Government on 22.04.2016 and remarks have been called for from the detaining authority on 25.04.2016. However, remarks have been received by the Government only on 05.05.2016, i.e., after a delay of 10 days and the case of the detenu was dealt with by the Minister concerned on 18.05.2016 and the same

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https://hcservices.ecourts.gov.in/hcservices/

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was rejected on 19.05.2016. From the above, it is clear that in between 24.04.2016 and 05.05.2016, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 8 days. Even if we give concession to the 2 intervening holidays including Government holidays, namely 30.04.2016 and 01.05.2016, still there is a delay of 8 days, which remain unexplained.

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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 8 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.

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7.In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows:

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"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."

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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 8 days delay has not been properly explained at all.

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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.

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https://hcservices.ecourts.gov.in/hcservices/

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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.

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Accordingly, the habeas corpus petition is allowed and the detention order dated 30.10.2015, passed by the 2^nd respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case.

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Sd/Assistant Registrar(J) //True Copy// Sub Assistant Registrar kua To: 1.The Secretary, State of Tamil Nadu Prohibition and Excise Department, St.George Fort, Chennai-600 009. 2.The Commissioner of Police, City Police Office Campus, Coimbatore District. 3.The Superintendent of Prison, Central Prison,Coimbatore. 4. The Joint Secretary to Government, Public (Law and Order), Fort St. George, Chennai. 5.The Public Prosecutor, High Court, Madras. H.C.P.No.3133 of 2015

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bvr[co] srg 31/08/2016

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https://hcservices.ecourts.gov.in/hcservices/

Nagajothi v. State of Tamil Nadu Rep. by

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Nagajothi v. State of Tamil Nadu Rep. by

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