The High Court allowed a habeas corpus petition and declared a detention order illegal due to unexplained institutional delay of 11 days in considering the detenu's representation, thereby quashing the order.
The detention order passed by the 2nd respondent is quashed and the detenu is 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.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2018
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
H.C.P.No.19/2018
Vijayakumar .. Petitioner vs. 1.The Secretary to Government, State of Tamil Nadu, Home, Prohibition & Excise Department Secretariat, Chennai 600 009.
2.The Commissioner of Police Greater Chennai Police, Vepery, Chennai 600 007. .. Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the entire records relating to petitioner's friend detention under Tamil Nadu Act 14 of 1982 vide detention order dated 30.11.2017 on the file of the 2nd respondent herein made in proceedings No.750/BCDFGISSSV/2017 and quash the same as illegal and consequently direct the respondents herein to produce the said petitioner's friend namely Dharasingh Margam son of Punram Margam, aged 42 years, before this Court and set the petitioner's friend at liberty from detention, now petitioner's friend detained at Central Prison-II, Puzhal, Chennai-600066.
For petitioner : Mr.C.C.Chellappan
Petitioner, friend of detenu herein, has filed this Petition challenging the order of detention passed by the 2nd respondent in Memo No.51750/BCDFGISSSV/2017, dated 30.11.2017, branding his friend as an "Immoral Traffic Offender” as contemplated u/s.2[g] 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 1982].
2 As per the grounds of detention dated 30.11.2017, passed by the second respondent, the detenu came to adverse notice in the following cases: i)Adverse case: Sl Name of the Police Section of law No. station and Crime No. 1 Anti Vice Squad-II 3[2]a, 4[1], 5[1]a of ITP Cr.No.29/2014 Act 2 Anti Vice Squad-II 3[2]a, 4[1], 5[1]a, 6[1], Cr.No.41/2014 7[1] of ITP Act (ii) Ground Case: Sl Name of the Police Section of law No. station and Crime No. 1 Anti Vice Squad PS 3[2]a, 4[1], 5[1]a, 6[1], Cr.No.125/2017 7[1] of ITP Act 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 22.12.2017. According to the learned counsel for the petitioner, the representation, dated 22.12.2017 has been received by the Government on 27.12.2017 ; the remarks were called on the same day. But the said remarks were received only on 02.01.2018, after a delay of 7 days. He adds that though the file was submitted to the Under Secretary on the next day, i.e., on 03.01.2018 the Minster has dealt with the said file of the detenu only on 12.01.2018, with a further delay of 9 days and the rejection letter was prepared on 12.01.2018 and sent to the detenu on 12.01.2018. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 5 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 11 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.
4.Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that
the Government received the representation on 27.12.2017 and that was forwarded to the Detaining Authority, calling for remarks on the same day itself and remarks were received by the Government on 02.01.2018 and ultimately, the representation was considered and rejected on 12.01.2018 and the result of the consideration was communicated to the detenue on 12.01.2018 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.
5.We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.
6.As per the Proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu, dated 22.12.2017 which was received by the Government on 27.10.2017, remarks have been called for from the detaining authority on the same day itself, i.e., on 27.12.2017. But, remarks have been received by the Government only on 02.01.2018 and the case of the detenue was dealt with by the Minister only on 12.01.2018, i.e., after a total delay of 17 days and thereafter, the representation has been considered by the authorities concerned and rejected on 12.01.2018 and the Rejection letter was sent to the detenu on 12.01.2018. From the above, it is clear that in between 27.12.2017 and 02.01.2018 [period between remarks called for and remarks received], there is a delay of 7 days and in between 03.01.2018 and 12.01.2018 [i.e., the period between the file submitted to the Department concerned and dealing of the same by the Minister], there is a further delay of 9 days. Even if we give concession to the intervening holidays, namely 30.12.2017 ; 31.12.2017 ; 01.01.2018 ; 06.01.2018 and 07.01.2018, still there is a delay of 11 days, which remain unexplained.
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 11 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.
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 " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest."
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 11 days delay has not been properly explained at all.
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 11 days in total, has not been properly explained at all.
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.
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.
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.
Sd/Assistant Registrar(CS II)
//True copy//
Sub Assistant Registrar
AP
To
1.The Secretary to Government,
State of Tamil Nadu,
Home, Prohibition & Excise Department
Secretariat, Chennai 600 009.
2.The Commissioner of Police
Greater Chennai Police,
Vepery, Chennai 600 007.
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent,
Central Prison, Puzhal, Chennai.
( In Duplicate for Communication to Detenue)
5.The Joint secretary to Government,
Public (Law and Order), Fort Saint George,
Chennai-9.
H.C.P.No.19/2018
AK(CO)
GN(27/03/2018)
2 issues framed by the court
Whether unexplained delay of 11 days in considering the detenu's representation vitiates the detention order.
Whether the Government fulfilled its constitutional obligation under Article 22(5) to consider representation without avoidable delay.
Colour shows how this judgement treated each authority
Rajammal vs. State of Tamil NaduRelied on¶14
(1999) 1 SCC 417 · Who else cites this
Ummu Sabeena vs. State of KeralaRelied on¶26
2011 STPL (Web) 999 SC
3 provisions across 2 enactments
Vijayakumar
The Secretary to Government, State of Tamil Nadu
The Commissioner of Police Greater Chennai Police
C.T. SELVAM
N. SATHISH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
