Allowed

Ramana, M/A-50 Years v. the State of Tamil Nadu Rep.by

Madras HC6 Mar 2018HCP/1685/2017

Case brief

AI extract

What is this about?

The High Court allowed a Habeas Corpus petition filed by a friend of a detenu. The Court held that an unexplained delay of 15 days in considering the detenu's representation violated Article 22(5) of the Constitution, thereby rendering the detention order illegal and quashing it.

What did the court decide?

The detention order passed by the 2nd respondent is quashed. The detenu is directed to be set at liberty forthwith.

Ramana, M/A-50 Years Vs the State of Tamil… — Pension and Retirement Benefits | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.03.2018

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CORAM

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THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

H.C.P.No.1685/2017

Ramana

.. Petitioner

vs.

1.The Secretary to Government, State of Tamil Nadu, Department Prohibition & Excise [Home] Fort St George, Chennai-9.

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2.The Commissioner of Police Chennai City Police, Greater Chennai Commissioner Office, Vepery Chennai 600007. .. Respondents

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Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records relating to the impugned order in No.489/BCDFGISSSV/2017 dated 17.08.2017 on the file of the 2^nd respondent herein and set aside the same as illegal and direct the respondents to produce the detenue Manikandan @ Dio Mani son of Jayapl, aged about 23 years, now confined at Central Prison-II, Puzhal, Chennai, before this Court and set him at liberty.

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ORDER (Order of the Court was made by C.T.SELVAM, J.)

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Petitioner, friend of detenu herein, has filed this Petition challenging the order of detention passed by the 2^nd respondent in No.489/BCDFGISSV/2017 dated 17.08.2017, branding his friend as a "Goonda” as contemplated u/s.2[f] of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of

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

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1982].

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2 As per the grounds of detention dated 17.08.2017, passed by the second respondent, the detenu came to adverse notice in the following cases:

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i)Adverse case:

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Sl	Name of the Police	Section of law
No.	station and Crime No.
1	R1 Mambalam PS Cr.No.1369/2017	379 IPC
2	R8 Vadapalani PS	379 IPC
	CrNo.189/2017

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(ii) Ground Case:

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Sl	Nam	e of the Police		Section of law
No.	stat	ion and Crime No.
1	E3	Teynampet	PS 3 of	Explosive Substances
	Cr.No.	1506/2017		Act, 1908.

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3 Even though the learned counsel for the petitioner raised many grounds in assailing the impugned order of detention in the petition, he confined his arguments only to the ground of delay in considering the representation of the detenu, dated 06.09.2017. According to the learned counsel for the petitioner, the representation, dated 06.09.2017 has been received by the Government on 07.09.2017 ; the remarks were called on the same day. But the said remarks were received only on 11.09.2017, after a delay of 4 days. He adds that though the file was submitted to the Under Secretary on 11.09.2017 itself, the Minister has dealt with the said file of the detenu only on 28.09.2017, with a further delay of 17 days and the rejection letter was prepared on 03.10.2018 and sent to the detenu on the same day. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 6 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 15 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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4.Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 07.09.2017 and that was forwarded to the Detaining Authority, calling for remarks on the same day itself and remarks were received by the

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

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Government on 11.09.2017 and ultimately, the representation was considered and rejected on 03.10.2017 and the result of the consideration was communicated to the detenue on 03.10.2017 itself. Therefore, according to the learned Additional Public Prosecutor, there is no inordinate delay in considering the representation of the detenue and therefore, he prayed for dismissal of the petition.

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

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6.As per the Proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu, dated 06.09.2017 which was received by the Government on 07.09.2017, remarks have been called for from the detaining authority on the same day itself, i.e., on 07.09.2017. But, remarks have been received by the Government only on 11.09.2017 and the case of the detenue was dealt with by the Minister only on 28.09.2017, i.e., after a total delay of 21 days and thereafter, the representation has been considered by the authorities concerned and rejected on 03.10.2017 and the Rejection letter was sent to the detenu on 03.10.2017. From the above, it is clear that in between 07.09.2017 and 11.09.2017 [period between remarks called for and remarks received] and in between 11.0.2017 and 28.09.2017 [the period between the file dealt with by the Under Secretary and the Minister concerned], there is a total delay of 21 days. Even if we give concession to the intervening holidays, namely 09.09.2017 ; 10.09.2017 ; 16.09.2017 ; 17.09.2017 ; 23.09.2017 and 24.09.2017, still there is a delay of 15 days, which remain unexplained.

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7.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 15 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.

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8.In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows: "It is a constitutional obligation of the Government to consider the representation forwarded by the detenue 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 "

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

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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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9..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 15 days delay has not been properly explained at all.

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10.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 the inordinate delay of 15 days in total, has not been properly explained at all.

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11.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 detenue, should be considered and disposed of with a sense of urgency and without any avoidable delay.

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12.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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13.Accordingly, the habeas corpus petition is allowed and the detention order passed by the 2nd 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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Assistant Registrar(CS II)

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Sub Assistant Registrar

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1.The Secretary to Government, State of Tamil Nadu, Department Prohibition & Excise [Home] Fort St George, Chennai-9.

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

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