Madras High Court
M.S.Pandi vs The Secretary To Government on 25 November, 2011
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/11/2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU H.C.P(MD) No.680 of 2011 M.S.Pandi .. Petitioner. Versus 1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2. The Commissioner of Police, Madurai City, Madurai. 3. The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli. .. Respondents. Prayer Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus Petition filed seeking to call for the entire reocrds connected with the detention order of the respondent No.2 in No.11/BDFGISSV/2011, dated 5.8.2011 and quash the same and direct the respondents to produce the body and person of the petitioner's father in law by name V.K.Gurusamy, Son of Krishnan, aged about 55 years now, detained in Palayamkottai Central Prison, before this Honourable Court and set him at liberty forthwith. !For Petitioner ... Mr.B.Kumar, Senior counsel for Mr.S.P.Samuvel Raj ^For Respondents ... Mr.K.Chellapandian Additional Advocate General. :ORDER
(Order of the Court was made by M.JAICHANDREN,J) This Habeas Corpus Petition has been filed praying that this Court may be pleased to call for the records relating to the detention order passed by the second respondent, in No.11/BDFGISSV/2011, dated 5.8.2011, and quash the same and to direct the respondents to produce the detenu, namely, V.K.Gurusamy, son of Krishnan, aged about 55 years, detained in the Central Prison, Palayamkottai, before this Court and to set him at liberty, forthwith.
2. It has been stated that the petitioner is the son-in-law of the detenu. He has filed the present Habeas Corpus Petition challenging the detention order passed by the second respondent, on 5.8.2011, in exercise of the powers conferred by sub-section (1) of Section 3 of the Tamilnadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982, (Tamilnadu Act No.14/1982), read with the order issued by the State government, in G.O.(D).No.119, Home, Prohibition and Excise (XVI) Department, dated 18.7.2011, under sub-Section (2) of Section 3 of the said Act, directing the detention of V.K.Gurusamy, termed as a "Goonda",to be detained in the Central Prison, Palayamkottai.
3. It has been further stated that the detention order passed by the second respondent is arbitrary, illegal and it has been passed without proper application of mind and therefore, it is liable to be set aside. It has been further stated that the detaining authority has mentioned, in paragraph 5 of the grounds of detention, that the detenu has filed a bail application in the ground case, in B3 Teppakulam PS Crime No.1147 of 2011 before the Judicial Magistrate No.1, Madurai, in Crl.M.P.No.6764 of 2011, and the same is pending. It had also been stated that, in the adverse cases, in B3 Teppakulam PS Crime No.925 of 2008 and in B4 Keeraithurai PS Crime No.388 of 2011, the applications filed on behalf of the detenu are pending disposal, on the file of the Judicial Magistrate No.I, Madurai and the Judicial Magistrate No.IV, Madurai, vide Crl.M.P.No.6744 of 2011 and Crl.M.P.No.4155 of 2011, respectively. It had also been stated that the bail application filed on behalf of the detenu in the third adverse case, in Madurai City Central Crime Branch Crime.No.61 of 2011, in Crl.M.P.No.6721 of 2011 has been dismissed by the Judicial Magistrate No.1, Madurai.
4. The detaining authority has also stated that he is aware, through the statement of Thanga Velammal, wife of the detenu, that efforts were being made to file a further bail application, in the Madurai City Central Crime Branch Crime No.61 of 2011. The detaining authority had further mentioned that he is aware that there is a real possibility of the detenu coming out on bail, in the cases registered, in Cr.No.925 of 2008, and in Cr.No.1147 of 2011, on the file of the B3, Teppakulam police station and in Cr.No.388 of 2011, on the file of the B4 Keeraithurai Police station, through the pending bail applications.
5. It has been further stated that the ground case, in B3 Teppakulam PS Crime No.1147 of 2011, had been registered against the detenu, based on the complaint made by one Mayilmurugan, under Section 147, 148, 452, 341, 323, 307 and 506(ii) I.P.C. The detenu had been arrested, formally, on 1.8.2011, as he was in the Central Prison, Palayamkotai, in Madurai City Central Crime Branch Crime No.61 of 2011. Thereafter, he was produced, under a P.T. warrant, before the Judicial Magistrate No.1, Madurai, and he had been remanded in judicial custody, on 2.8.2011.
6. It had been further stated that the detention order had been passed, on 5.8.2011. The Judicial Magistrate has no jurisdiction to grant the bail, within three days, in a case registered, under Section 307 of the I.P.C. In fact, the detaining authority had relied on an anticipatory bail order, dated 2.12.2009, passed by the Madurai Bench of the Madras High Court, in Crl.O.P.(MD) No.10254 of 2009 to the accused Gundumani @ Muthuramalingam concerned in B6 Jaihindapuram PS Crime No.1132 of 2009 and the bail order granted to the accused Pandi concerned in the adverse case in Madurai City Central Crime Branch Cr.No.61 of 2011 vide Crl M.P.No.6721 of 2011. Thus, it is clear that the detaining authority has passed the detention order, without application of mind and without taking into consideration the actual facts and circumstances of the case.
7. It had also been stated that the arrest and the detention of the detenu in the ground case and in the adverse cases had not been informed to the family members of the detenu. The information regarding the arrest of the detenu had been informed only to the jailer of the central prison, Palayamkottai. The detaining authority had passed the detention order, mechanically, without obtaining the necessary clarifications. It had also been stated that the alleged occurrence mentioned in the third adverse case is supposed to have taken place in the month of February, 2010. However, the first information report had been registered, only on 29.7.2011.
8. It had been further stated that, on 8.8.2011, the petitioner had preferred a representation to the first respondent. However, the said representation had not been placed before the advisory board, as per Section 10 of Act 14 of 1982. Even though it has been mentioned, in paragraph No 3 of the detention order, that the detaining authority had directed that the detenu, who is a "Goonda", be detained at the Central Prison, Madurai, in exercise of powers conferred by sub section (1) of Section 3 of the Act, read with the order issued by the Government in G.O.(D) No.119, Home, Prohibition and Excise (XVI) Department, dated 18.7.2011, a copy of the said Government order had not been furnished to the mother of the detenu, in spite of her specific requests for a copy of the said order. The failure of the first respondent to supply a copy of the government order is a clear case of violation of clause 5 of Article 22 of the Constitution of India.
9. It has been further stated that, in spite of the mandatory nature of Section 10 of the Act, the first respondent had failed to place all the relevant documents relating to the detention order, before the advisory board, within three weeks from the date of the detention of the detenu. There are no cogent materials to show that the first respondent had complied with the said requirements.
10. It had been further stated that there are no materials to show that the arrest of the detenu and the place of his detention, in the adverse cases, had been communicated to the relatives of the detenu. Even though it had been shown that the incident, relating to the ground case, had happened, on 6.4.2011, the first information report had been registered, only on 31.7.2011, after a delay of more than 100 days.
11. It had been further stated that the detenu had filed a bail application in the third adverse case and the same had been dismissed. Thereafter, the detenu did not file any bail application in the third adverse case. Bail petitions had been filed on behalf of the detenu, in the first and the second adverse cases, and in the ground case and they have been pending, at the time of the passing of the detention order. However, the detaining authority has mentioned, in paragraph 5 of the grounds of detention, that there is a real possibility of the detenu coming out on bail in the said cases. It has also been stated that the wife of the detenu, namely, Thanga Vellammal, had not given any statement before the sponsoring authority, as shown in page 143 of the booklet.
12. It had also been stated that, on 7.8.2011, the petitioner had preferred a representation before the first respondent, requesting for the revocation of the detention order. However, the same had not been considered, expeditiously. Further, on 8.8.2011, the petitioner had preferred a representation before the first respondent and the said representation had not been considered by the first respondent.
13. It had also been stated that the Tamil and the English versions of the grounds of detention, given in the booklet, are ambiguous, in nature. The defective translation of the grounds of detention shows the non-application of mind by the detaining authority, while passing the detention order. The representation preferred by the petitioner, on 7.8.2011, to the second respondent, had not been placed before the first respondent. Further, the police officials concerned had failed to follow the principles laid down by the Supreme Court, in D.K.BASU Vs. STATE OF WEST BENGAL (1997(1) SCC 416), while arresting the detenu in the ground case, as well as in the second and the third adverse cases.
14. It had also been stated that the affidavit of the sponsoring authority, which is a vital document relating to the detention order, had not been supplied to the detenu, to enable him to prefer an effective representation against the detention order. The failure of the sponsoring authority goes to the root of the matter and it is a clear case of violation of clause 5 of Article 22 of the Constitution of India.
15. It had also been stated that the sponsoring authority did not supply the complaint of the complainant, in the ground case, as well as in the adverse cases. As such, the detenu had been prevented from making a proper representation against the order of detention. As such, the detention order passed by the second respondent, on 5.8.2011, is liable to be set aside.
16. In the counter affidavit filed on behalf of the second respondent, it has been stated that the detenu has come to adverse notice, in three adverse cases, in Cr.No.925 of 2008, on the file of the B3 Teppakulam Police Station, in Cr.No.388 of 2011, on the file of the B4 Keeraithurai Police station, and in Madurai City Central Crime Branch Cr.No.61 of 2011, as well as in the ground case, in Cr.No.1147 of 2011, on the file of the B3 Teppakulam Police station.
17. It had also been stated that the detenu was in remand in the ground case, in B3 Teppakulam Police Station Cr.No.1147 of 2011, and also in the adverse cases, in B3 Teppakulam Police Station Cr.No.925 of 2008, and in B4 Keeraithurai police station Cr.No.388 of 2011 and in Madurai City Central Crime Branch Cr.No.61 of 2011, on the date of the detention order. The bail application filed on behalf of the detenu in the third adverse case, in Cr.No.61 of 2011, had been dismissed by the Judicial Magistrate No.1, Madurai, vide Crl.M.P.No.6721 of 2011. Further, the bail application filed on behalf of the detenu in the ground case, in Cr. No.1147 of 2011 and in the two adverse cases, in Cr.No.925 of 2008 and Cr.No.388 of 2011, were pending disposal before the concerned Judicial Magistrates, in Crl.M.P.No.6764 of 2011, 6744 of 2011 and Crl.M.P.No.4155 of 2011, respectively. From the statement made by Thanga Velammal, Wife of the detenu, it was clear that efforts had been made to file a bail application, on behalf of the detenu, in Cr.No.61 of 2011.
18. It had also been stated that in view of the anticipatory bail granted to the accused Gundumani @ Muthuramalingam, in Cr. No.1132 of 2009, on the file of the B6 Jaihindpuram police station, by the Madurai Bench of the Madras High Court, in Crl.O.P.No.10254 of 2009, and in view of the bail granted to the accused Pandi, in the adverse case, in Cr.No.61 of 2011, vide Crl.M.P.No.6721 of 2011, by the Judicial Magistrate No.1, Madurai, there was a clear possibility of the detenu being released from detention. Further, in view of the anticipatory bail granted to Gundumani @ Muthuramalingam, by the High Court, there was every possibility of the detenu being released by the orders, that may be passed by the High Court, as the case of the accused Gundumani @ Muthuramalingam was similar to the cases relating to which the detenu is in custody.
19. It had also been stated that the arrest memo intimating the arrest of the detenu, in the Cr.No.61 of 2011, on 29.7.2011, had been served on Moorthy, uncle of the detenu, on the same day. A copy of the same had also been furnished to the detenu, as shown on page 96 of the booklet. Even though in the other three cases, the detenu had been arrested, formally, while he was in remand in the Central Prison, Palayamkottai, the information regarding the arrest of the detenu had been given to the prison authorities and copies of the arrest memo as shown, at page Nos.42, 66 and 129 of the booklet, had been furnished.
20. It had also been stated that, even though the offences in the third adverse case, in Madurai Central Crime Branch Cr.No.61 of 2011, had occurred during the month of February, 2011, the complainant had preferred the complaint, only on 29.7.2011. Similarly, in the ground case, in Cr.No.1147 of 2011, the offence had occurred, on 6.4.2011 and the complainant had preferred a complaint, only on 31.7.2011, before the B3 Teppakulam police station. The delay in making the complaint had occurred, as the detenu had threatened the complainant that he would be murdered, if he made a complaint to the police, with regard to the activities of the detenu.
21. It had also been stated that the representation of the petitioner, dated 7.8.2011, made to the second respondent, had been considered, without any delay. A copy of the reply had been served on the petitioner and it had also been sent to the state Government, the first respondent herein, to place it before the Advisory Board. Further, the representation submitted by the petitioner, on 8.8.2011, to the first respondent, had also been considered, without any undue delay.
22. It had also been stated that all the documents relied on by the detaining authority, for the passing of the detention order, had been supplied to the detenu. The documents, which were in English, had been translated into the Tamil, without any ambiguity, in a legible manner. The document in G.O.(D) No.119, Home, Prohibition and Excise (XVI) Department, dated 18.7.2011, which delegates the power to the detaining authority, for the passing of the detention order, is in no way connected to the facts of the case, as it is only a document, which is administrative in nature. The non-supply of the said document cannot be shown as a flaw in the procedures followed by the detaining authority, for the passing of the detention order, dated 5.8.2011.
23. It has been further stated that all the relevant documents had been supplied to the detenu, without any delay, and they had also been placed before the Advisory Board, following the due procedures established by law. As such the present Habeas Corpus Petition filed by the petitioner is devoid of merits and therefore, it is liable to be dismissed.
24. The learned Senior Counsel Mr.B.Kumar, had submitted that the detenu ought to have been given the earliest opportunity to make his representation, as per the mandate, in clause 5 of Article 22 of the Constitution of India. He had referred to the relevant provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders and Slum Grabbers Act,1982, (Act 14 of 1982), and had stated that, as per Section 3 of the said Act, the State Government may, if satisfied that the activities of the detenu would be prejudicial to the maintenance of public order, make an order directing that such person may be detained. However, the grounds of detention shall be communicated to the detenu, by the authority concerned, as soon as possible, not later than five days from the date of detention, and the detenu shall be afforded the earliest opportunity of making a representation against the order, to the State Government. Since, the detaining authority passes the detention order, pursuant to the power vested in the said authority, by way of delegation of powers, the State Government has the power to review such an order passed by the detaining authority. Even thereafter, sufficient safe guards have been incorporated, in the provisions of the Act, to protect the interests of the detenu. As per Section 10 of the said Act, in every case, in which a detention order has been made, the State Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, constituted as per the provisions of Section 9 of the said Act, the grounds on which the order of detention has been made and the representation, if any, made by a person affected by the order. Thereafter, it is for the advisory Board to find out if sufficient cause had been shown for the passing of the detention order.
25. The learned counsel had also submitted that clause 4 of Section 11 of the Act makes it clear that the proceedings of the Advisory Board and its report shall be confidential in nature. Thereafter, based on the report of the Advisory Board, the State Government may confirm the detention order and continue the detention of the person concerned, for such period, not exceeding the maximum period specified in Section 13, which is 12 months from the date of detention. However, Section 14 of the Act states that a detention order may be revoked or modified, at any time, by the State Government. The detention order passed by the concerned District Magistrate or the Commissioner of Police has to be approved and confirmed by the State Government, as per the relevant provisions of the Act. Thus, it is clear that a number of checks and balances have been incorporated in the provisions of the Act in order to make sure that the personal liberty of a person is not taken away, arbitrarily, by the orders passed by the authorities empowered to pass the detention order.
26. The learned counsel had further submitted that even though the original order of detention, passed by the authority concerned, would be in vogue only for a period of 12 days, unless it is, thereafter, approved by the State Government, it would not be open to the respondents to contend that the subsequent Government order approving the earlier detention order and the Government order confirming the same have to be challenged, by the detenu, for an effective relief. The right to challenge the detention order arises, the moment such an order is passed. It is not necessary for the detenu, or anyone acting on his behalf, to challenge the subsequent orders of approval and confirmation, passed by the State Government. Once, the initial order of detention is set aside, the subsequent Government orders would be a nullity in the eye of law.
27. He had also submitted that the contention of the learned counsel appearing on behalf of the respondents that the proceedings before the Advisory Board would be an effective alternative remedy cannot be accepted. He had stated that there is no lis before the Advisory Board and therefore, the question of the proceedings before the Advisory Board, being an alternative remedy, does not arise.
28. The learned counsel had further submitted that Clause 5 of the Article 22 of the Constitution of India makes it clear that the detenu ought to be given the earliest opportunity of making a representation. It is a fundamental right, which cannot be abridged or curtailed by any authority, including the State Government. Since, such a right has been recognised by the Constitution of India, it automatically implies that a concomitant remedy has to be made available to enforce such a right. Accordingly, any representation submitted on behalf of the detenu should be considered and disposed of, as early as possible, without any undue or unexplained delay. Therefore, it cannot be contended, by the respondents, that the representation submitted on behalf of the detenu can be considered only after the order of confirmation had been passed confirming the detention order passed, by the detaining authority. Such an interpretation could not have been conceived by authors of the Constitution, while enacting clause 5 of Article 22 of the Constitution of India, which is forming a part of the chapter on fundamental rights.
29. The learned counsel had also submitted that there is no prescribed form for the pleadings, in a Habeas Corpus petition. The relief sought for by the petitioner, in the present Habeas Corpus Petition, to set aside the detention order of the second respondent, dated 5.8.2011, would be sufficient for this Court to grant the necessary relief to the detenu. It is not necessary for the petitioner to challenge the subsequent Government orders, in G.O.Ms.No.1090, Home, Prohibition and Excise (IX) Department, dated 8.8.2011 and G.O.Ms.No.1814, Home, Prohibition and Excise Departmetn, dated 14.10.2011, to get an effective remedy, as contended by the learned counsel appearing on behalf of the respondents. It is not in dispute that the detenu is in prison only on account of the original detention order passed by second respondent. If the original detention order passed by the second respondent is set aside, the subsequent Government orders would become otiose. Even though the original detention order passed by the detaining authority would survive only for a period of 12 days from the passing of the said order, the State Government would have the power to revoke or to modify such an order, as per the provisions of Section 14 of Act 14 of 1982.
30. With regard to the facts of the case, it has been stated that the detaining authority had passed the detention order, dated 5.8.2011, based on the ground case, in Cr.No.1147 of 2011, on the file of the B3 Teppakulam Police station and on the three adverse cases, in Cr.No.925 of 2008, on the file of the B3 Teppakulam Police Station, in Cr.No.388 of 2011, on the file of the B4 Keeraithurai Police station, and in Madurai City Central Crime Branch Cr.No.61 of 2011. The detenu has been in judicial custody in all the four cases. Even though it has been stated that in the grounds of detention that a bail order had been passed, in Crime No.61 of 2011, a copy of the said order had not been supplied to the detenu, along with the grounds, within five days, as prescribed by the relevant provisions of the Act. In the grounds of detention, it has also been stated that in similar cases anticipatory bails have been granted and therefore, there is a possibility of the detenu coming out on bail. It clearly shows the non-application of mind, by the detaining authority, while passing the detention order. In fact, no particulars had been made available regarding the cases referred to by the detaining authority. In fact, an anticipatory bail order, passed in a case in counter, had been furnished. However, it is not an order passed, either in a ground case or in an adverse case.
31. No proper reasons have been given, as to why the detaining authority had referred to the anticipatory bail order furnished in the case in counter. The learned Senior Counsel Mr.B.Kumar had referred to the decision of the Supreme Court, in Rekha Vs. State of Tamilnadu (2011 (5) SCC 244), wherein, it has been held that where a detention order is passed against a person already in custody, there should be a real possibility of his release on bail, if he has moved a bail application, and it is pending. It follows, logically, that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence, the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused, whose case stands on the same footing, had been granted bail. In such cases, the detaining authority can reasonably conclude that there is a likelihood of the detenu being released on bail, even though no bail application of his is pending, since, most courts, normally, grant bail on this ground. However, details of such alleged similar cases must be given, without which, the bald statement of the authority cannot be believed.
32. He had also submitted that if a person is already in prison, unless a co-accused in the alleged offence had already been released, it cannot be concluded that there is an imminent possibility of the detenu coming out on bail and that he would indulge in activities prejudicial to the maintenance of public order. Even in such a case the co-accused ought to have been involved in the committing of the alleged offence, similar to that of the detenu, in all aspects. In the case in hand, the alleged occurrence in the ground case is said to have taken place, on 6.11.2011. The detenu had been arrested in the third adverse case, on 29.7.2011. Only thereafter, a complaint had been lodged against the detenu, on 31.7.2011. As such, it is clear that, in the case of the detenu, the proximity test has not been satisfied.
33. The learned Additional Advocate General appearing on behalf of the respondents had submitted that the Habeas Corpus Petition, filed on behalf of the detenu, is premature in nature. He had submitted that the Habeas Corpus Petition has been filed even before the order of detention, passed by the detaining authority, had been considered by the Advisory Board. Therefore, it is liable to be dismissed. He had relied on the decision of the Kerala High Court, in R.P.Goyal Vs. State, [AIR 1974 Kerala 85 (V 61 C 24)], wherein, it has been held that the protection envisaged by the Constitution of an Advisory Board for looking into the defects in the passing of an order of detention is a substantial protection. Normally, therefore, before the order has become final, on the application of mind relating to the question of existence or otherwise of grounds justifying the detention, by the State Government, and the Advisory Board expressing its opinion, as to whether there is cause for detention or not, it should not be interfered with by the High Court, as the Court should not deal with the question on insufficient materials.
33.1. The learned counsel had relied on the decision of the Supreme Court, in D.M.Nagarja Vs. The Government of Karnataka and others, 2011 (2) TLNJ 361 (Criminal), to state that there is no obligation on the part of the detaining authority or the State Government to dispose of the representation made on behalf of the petitioner, before the order of detention is approved.
33.2. The learned counsel had also submitted that recourse to normal criminal law would not have the desired effect of effectively preventing the detenu from indulging in activities, which would be prejudicial to the maintenance of public order. The learned counsel relied on the decision of the Supreme Court, in Rekha Vs. State of Tamilnadu (2011 (3) MLJ (Crl.) 422)(SC), to state that there could a valid assumption of existence of a real possibility of release of a person, who is already in custody, on bail, provided he had moved a bail petition before the appropriate Court, and it is pending.
33.3. The learned counsel had relied on the decision of the Supreme Court, in A.Geetha Vs. State of Tamilnadu (CDJ 2006 SC 702), wherein, it had been held that the only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse-dixit of the detaining authority. It would be sufficient if the detaining authority came to the conclusion, by his subjective satisfaction, based on the relevant materials. Normally, such satisfaction is not to be interfered with.
33.4. The learned counsel had also submitted that, from a perusal of the records relating to the adverse cases, as well as the ground case, the detaining authority had come to the conclusion that the detenu could indulge in certain activities, if he is at large, which would be prejudicial to the maintenance of public order. The learned counsel had further submitted that, from the statements made by the witnesses, made under Section 161(3) Cr.P.C., it is clear that the detenu had indulged in activities resulting in the disturbance of public order.
34. In reply, the learned counsel appearing on behalf of the petitioner had pointed out that there has been an undue and unexplained delay in the disposal of the representation of the petitioner, dated 8.8.2011. He had pointed out that the representation made on behalf of the petitioner, on 8.8.2011, had been dealt with, by the Deputy Secretary concerned, on 22.8.2011. Thereafter, the Minister for Electricity, Prohibition and Excise had dealt with the said representation, only on 9.9.2011. Thus, there has been a delay of 18 days in considering the representation of the petitioner, dated 8.8.2011. Six days, out of the 11 days, i.e. 27.8.2011, 28.8.2011, 31.8.2011, 1.9.2011, 3.9.2011 and 4.9.2011, were government holidays. As such, there has been an actual delay of 12 days in the disposal of the representation made on behalf of the petitioner. Such undue and unexplained delay is fatal to the detention order, dated 05.8.2011, passed by the first respondent .
35. Even though a number of grounds had been raised in the present Habeas Corpus Petition and various contentions had been put forth, by the learned counsel appearing on behalf of the petitioner, this court is convinced that it would be sufficient to consider only the issue relating to the delay in the disposal of the representation made on behalf of the detenu, on 8.8.2011, to set aside the detention order, dated 5.8.2011, passed by the second respondent.
36. In a number of decisions, the Apex Court, as well as the various High Courts, have made it clear that the delay in disposing of the representation would vitiate the order of detention. Some of them are as follows:
1. Binod Singh Vs. District Magistrate, Dhanbad (AIR 1986 SC 2090)
2. Rivadeneyta Ricardo Agustin Vs. Government of Delhi (1994 SCC (Cri)
354)
3. Rajammal Vs. State of Tamil Nadu and another (1999 SCC (Cri) 93)
4. Senthil Kumar Vs. District Magistrate and District Collector (2008(2) MLJ (Crl.) 1071)
5. Jakkulin Vs. State of Tamil Nadu (2008 (2) MLJ (Crl.) 1571)
6. State of Tamil Nadu rep. By its Secretary to Government, Home, Prohibition and Excise (IX) Department, Secretariat, Chennai and another [(2009(1) MWN (Cr.) 400 (DB)] 36.1. In the decision, in Prabhu Dayal Deorah Vs. District Magistrate, Kamrup and others (AIR 1974 SC 183), the Supreme Court has held that the constitutional requirement of Article 22(5) will not be satisfied, unless the detenu is given the earliest opportunity to make a representation against the detention. Thus, it is clear that the State has a concomitant and corresponding duty to dispose of the representation, without any delay. Therefore, the Supreme Court has repeatedly held that the State government is bound to consider the representation made on behalf of the detenu, at the earliest possible, as it is a mandatory obligation cast on it, by Clause (5) of Article 22 of the Constitution of India.
36.2. In Ramamurthy Vs. The State of Tamil Nadu (2006(4) CTC 181), this Court had set aside the order of detention on the ground of delay in considering the representation made on behalf of the detenu.
36.3. In a decision of the Constitution Bench of the Supreme Court, in Jayanarayan Sukul Vs. State of West Bengal, (1970(1) SCC 219), it has been held as follows:-
"The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril, immediate action should be taken by the relevant authorities."
36.4.The Supreme Court, in Mahesh Kumar Chauhan alias Banti Vs. Union of India & Others, (1990) 3 SCC 148), while dealing with a preventive detention case, has observed as under:
"Except merely mentioning that the representation was forwarded to the concerned sponsoring authority on August 25, 1989 and the comments from the sponsoring authority was received by the Department on September 11, 1989, there is absolutely no explanation as to why such a delay had occurred. This undue and unexplained delay is in violation of Article 22(5) rendering the detention order invalid."
36.5. In RAMA DHONDU BORADE VS. V.K.SARAF, COMMISSIONER OF POLICE (1989) 3 SCC 173), the Supreme Court has observed as follows:
"A representation of a detenu whose liberty is in peril should be considered and disposed of as expeditiously as possible; otherwise, the continued detention will render itself impermissible and invalid as being violative of Article 22(5). If any delay occurs in the disposal of a representation, such delay should be explained by the appropriate authority to the satisfaction of the Court. In case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable - indeed appropriate - for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay. In absence of any explanation, Court cannot wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of a very serious nature as in the present case"
36.6. In the decision, in Venkatesan @ Maya Venkatesan (2007(1) MLJ (Crl.) 1176), it has been held as follows:
"10..... thus it is clear that the Government is bound to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. The test is not the duration or range of delay, but how it is explained by the Authority concerned. In this case, as pointed out above, there is absolutely no explanation for the delay of four days. It is a constitutional obligation to consider the representation forwarded by the detenu without any delay, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Hence, on this ground also the order of detention is liable to be quashed."
36.7. In the decision, in Sumaiya Vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9 and another [2007(2) MWN (Cr.) 145 (DB)], this Court had held that an unexplained delay of three days in the disposal of the representation, made on behalf of the detenu, would be sufficient to set aside the detention order.
36.8. In Kalaiselvi.G. Vs. The State of Tamil Nadu (2007(5) CTC 657), a Full Bench of this Court had held as follows:
"26.The last contention is relating to delay in disposal of the representation. It is by now well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity of making representation and such right of the detenu obviously encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay and the result of such representation should also be communicated without unnecessary delay. This position is apparent from several decisions of the Supreme Court, including the decision Usha Agarwal vs. Union of India and others (2007 (1) SCC 295), wherein, after referring to the Constitution Bench decision of the Supreme Court in Kamleshkumar Ishwandas Patel vs. Union of India, (1995) 4 SCC 51, it was observed:
This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention."
36.9. In Rekha Vs. State of Tamilnadu (2011(5) SCC 244), it has been held that the personal liberty of a person is protected, under Article 21 of the Constitution of India. As it is so sacrosanct and so high in the scale of constitutional values, there is an obligation on the detaining authority to show that, while passing the impugned order of detention, the procedures established by law have been meticulously followed. The procedural safe guards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu.
36.10. A dissenting note seems to have emerged from the decision of the Supreme Court, in D.M.Nagaraja Vs. The Government of Karnataka and others [(2011(2) TLNJ 361 (Criminal)], wherein, it has been held that there is no constitutional mandate, under Clause (5) of Article 22, much less any statutory requirement, to consider the representation, made on behalf of the detenu, before the order of detention is confirmed. However, it is needless to point out that the correct position of law has been enunciated by the Supreme Court, in its decision, in K.M.Abudlla Kunhi Vs. Union of India (1991(1) SCC 476), wherein, it had been held as follows:
"12........ The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal....."
36.11. In fact, this Court, in its order, dated 9.11.2011, in Smt.Sowdun Bivi Vs. The State of Tamilnadu (H.C.P.No.108 of 2011), has clarified the position relating to the issue regarding the consideration of the representation made on behalf of the detenu, referring to the Full Bench decision of this Court, in Rajammal Vs. State of Tamil Nadu and another (1999 AIR SCW 139). Thus, it is clear from the catena of cases decided by the Supreme Court that there is an obligation cast on the detaining authority, as well as the State Government, to consider the representation made on behalf of the detenu, as early as possible, as per the mandate enshrined in Clause (5) of Article 22 of the Constitution of India.
36.12. In Rashid sk. v. State of West Bengal reported in 1973 (3) SCC 476, the Supreme Court has held as follows:
"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."
36.13. In Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65, the Supreme Court has held thus;-
"...the right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal not only by the State Government under the relevant provision of the Statute, but also by the Central Government. But in each case it is one of fact to be ascertained whether the Central Government or State Government, as the case may be, has caused delay due to negligence, callous inaction, avoidable re-tapism and undue protraction by the authorities concerned. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India."
36.14. In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554, the Supreme Court has held as follows:-
"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. .......
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)."
36.15. In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, (1986) 1 SCC 650, the Apex Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.
36.16. In Rajammal v. State of Tamil Nadu, 1999 (1) SCC 417, it has been held as follows:-
"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. 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."
36.17. In K.M.Abdulla Kunhi v. Union of India, (1991) 1 SCC 476, it has been held as follows:-
"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."
36.18. 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.
39. In the present case, the delay caused in the disposal of the representation, dated 08.08.2011, made on behalf of the detenu, has not been properly explained by the respondents, either in the counter affidavit filed on their behalf, or in the oral submissions made by the learned Additional Advocate General appearing on behalf of the respondents. In such circumstances and in view of the decisions cited supra, the detention order, dated 5.8.2011, passed by the second respondent, is set aside. The detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other case or cause.
csh/ssm To
1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2. The Commissioner of Police, Madurai City, Madurai.
3. The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli.
4.The Public Prosecutor Madurai Bench of Madras High Court, Madurai.