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LATHA versus THE SECRETARY TO THE GOVERNMENT

High Court of Madras

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Latha v. The Secretary to the Government - H.C.P. No.365 of 2005 [2005] RD-TN 504 (26 July 2005)



In the High Court of Judicature at Madras

Dated: 26/07/2005

Coram

The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice AR. RAMALINGAM

H.C.P. No.365 of 2005

Latha .. Petitioner

-Vs-

1. The Secretary to the Government
Prohibition and Excise Department
Secretariat,
Chennai 9.

2. The Commissioner of Police,
Greater Chennai. .. Respondents

Petition filed under Article 226 of the Constitution of India
praying for issuance of writ of habeas corpus as stated therein.

For petitioner : Mr. V.Parthiban

For respondents : Mr. V. Arul
1 & 2 Govt., Advocate (Crl.)


:ORDER



(Order of the Court was made by P. SATHASIVAM,J.,) The petitioner is the wife of the detenu, Muthu, who challenges the impugned order of detention dated 28.02.2005, detaining him as " Goonda" under Section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (in short "Tamil Nadu Act 14 of 1982").

2. Heard learned counsel for both the sides.

3. Even at the out set, the learned counsel appearing for the petitioner submitted that there is enormous delay in the disposal of representation of the detenu dated 24.03.2005, which vitiates the detention order passed against him. With reference to the said claim, the learned Government Advocate has placed before us certain details, which show that the representation of the detenu dated 24.03.2005 was received by the Government on 29.03.2005; remarks were called for on 30.03.2005 and remarks were received on 04.04.2005. Thereafter, file was submitted on 05.04.2005 and the same was dealt with by the Deputy Secretary on 06.04.2005. Finally, the Minister for Prohibition and Excise, passed orders on 07.04.2005. However, the rejection letter was prepared only on 18.04.2005 and thereafter, the same was sent to the detenu on 19.04.2005 and served on him on 20.04.2005. Even though the competent authority, viz., Minister for Prohibition and Excise passed orders as early as on 07.04.2005, there is no explanation as to why the rejection letter was prepared only on 18.04.2005. In this regard, the learned Government Advocate brought to our notice that 09.0 4.2005, 10.04.2005, 14.04.2005, 16.04.2005 and 17.04.2005 were holidays. Even if we accept the claim of the Government Advocate, the fact remains that there were in between five clear working days. Therefore, we are unable to accept the explanation of the learned Government Advocate.

4. In a matter like this, we are of the view that the representation submitted by detenu should be considered and disposed of by the authorities concerned with a sense of urgency without avoidable delay. All the authorities, including the persons assisting the authorities have to act promptly and expeditiously. It is not only the duty of the Government to see that the representation of detenu or his relatives is considered and disposed of in accordance with law, but it should also be disposed of within a reasonable time and communicated to the detenu without undue delay. The objective of Article 22(5) of the Constitution of India is the most speedy consideration of representation made by the detenu by the authorities concerned and without its expeditious consideration with a sense of urgency, the basic purpose of affording the earliest opportunity of making the representation would be defeated. It is needless to mention that 'speedy consideration' would include the communication of the decision of the authorities / Government at the earliest point of time.

5. As already observed by us, the competent authority passed orders on 07.04.2005. In such a circumstance, the time taken by the officials to prepare the rejection letter and communicate the same to the detenu till 18.04.2005, in our view, is unwarranted. Though the detaining authority has concluded that the detenu has to be detained under Act 14 of 1982 in view of his involvement in number of criminal cases, this Court has no other option except to quash the detention order on the ground that the decision on the representation was not communicated to the detenu within a reasonable time. The Courts have held that three days' time at every stage of disposal of the representation would be reasonable and beyond the same, the delay cannot be considered to be reasonable unless it is properly explained. It is also relevant to note that as observed earlier, unless the result of the Government's decision is communicated to the detenu, it cannot be claimed that the mandate prescribed in Article 22(5) of the Constitution of India has been fulfilled effectively. It is the constitutional right of detenu to have his representation considered and hence, immediate action should be taken by the authorities concerned. It is well settled that the consideration of representation includes communication of the result of the same to the detenu within a reasonable time is a sufficient compliance of Article 22(5) of the Constitution of India. In other words, after proper consideration without delay, the result has to be communicated to the detenu at the earliest point of time meaning thereby within a reasonable time. As the particulars furnished show that though the Minister has passed order on 07.04 .2005, the rejection letter was prepared only on 18.04.2005. There is no explanation at all for the delay from the person / persons concerned.

6. Under these circumstances, in the light of the particulars furnished, in view of strict adherence to the constitutional provision, this Court has no other option except to quash the detention order. Accordingly, this petition is allowed. The order of detention impugned in the petition is set aside and the detenu is directed to be set at liberty forthwith from custody unless he is required in connection with any other case or cause. Index:Yes

Internet:Yes

Kh

To

1. The Secretary to Government

Prohibition and Excise Department

Fort St. George

Chennai 9.

2. The Commissioner of Police,

Greater Chennai.

3. The Superintendent

Central Prison, Chennai.

(in duplicate for communication to detenu)

4. The Joint Secretary to Government,

Public (Law & Order),

Fort St.George,

Chennai-9.

5. The Public Prosecutor

High Court, Madras.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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