Jessi v. Commissioner of Police, Tamil Nadu, (SC)
BS198293
SUPREME COURT OF INDIA
Before:- K.T. Thomas and S.N. Phukan, JJ.
CrA No. 1281 of 2001 D/d.
11.12.2001.
Jessi - Petitioner
Versus
Commissioner of Police, Tamil Nadu & Anr. - Respondents
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, Section 3 - Order of Detention - Plea of delay in disposing of representation - Sustainability - State Government failed to explain delay in disposing of representation - Therefore, impugned order quashed and set aside - Hence, appeal allowed.
[Para 8]
Cases Referred :-
Rajammal v. State of Tamil Nadu, JT 1998 (8) SC 598.
ORDER
Leave granted.
2. By order dated 16.5.2001, appellant's husband Singaram has been preventively detained under section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggars, Drug offenders, Forest offenders, Goondas, Immoral traffic offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982).
3. As the detenu was already in jail in connection with a theft case, in which he was arrested on 4.5.2001, there was no necessity of taking him into custody pursuant to the detention order. When his wife, the present appellant, filed a habeas corpus petition before the High Court of Madras, the same was disposed of by a division bench as per the impugned order upholding the detention and repelling of the grounds of challenge made against it.
4. Mr. K.K. Mani, learned counsel for the appellant advanced two grounds in this appeal which we have noticed, have been advanced before the High Court also. One is that there was delay in considering and disposing of the representation made by the detenu, the other is that the detention order failed to demonstrate that detenu had to be detained "with a view to prevent him from acting in any manner prejudicially to the maintenance of public order".
5. Elaborating the first point learned counsel pointed out is that a representation was made by the detenu on 29.5.2001 to the state government (respondent no. 2 in this appeal). The said representation was rejected only on 16.6.2001. Learned counsel invites our attention to the decision of a three-judge bench in Rajammal v. State of Tamil Nadu & Anr., JT 1998(8) SC 598. Therein it was held 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. The observation made by this Court in the said decision in paragraph 8 can profitably be quoted hereunder.
"The position, therefore, now is that 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."
6. "Unfortunately, respondent no.2 state, did, not file any counter before the High Court in answer to the averments made in the habeas corpus petition, Nonetheless, learned judges of the High Court did not accept the said ground for which the only reason advanced by the division bench is the following:
"The second and third contentions raised by learned counsel for the petitioner, have been found, on verification with reference to the relevant papers."
(The second contention mentioned therein pertains to delay in disposing of the representation preferred on behalf of the detenu.)
7. We called upon the state government to file a counter-affidavit in this appeal and pursuant thereto a counter-affidavit sworn to by secretary to the government (prohibition and excise department) was filed. All that the deponent has stated in the said counter-affidavit regarding the delay in disposing of the representation is that it was duly considered and rejected on 16.6.2001 within the time prescribed under the Act. The deponent also said that this aspect has been considered by the High Court and discussed in paragraph 7 of the impugned judgment. We have already quoted paragraph 7 of the impugned judgment which unfortunately considered that aspect in a slipshod manner. Both sides admitted before us that no time has been prescribed in the Act for disposal of the representation. If that be so, the deponent should have been more responsible to this Court when he stated that the representation was disposed of within the time prescribed under the Act. We do not know what made the deponent to make such a wrong statement in an affidavit.
8. The upshot of the above discussion is that the state government had failed to explain the seemingly long delay in disposing of the representation. As a sequel thereto, we have to interfere and quash the detention order. It is unnecessary to consider the second ground urged by the learned counsel in the light of what we found regarding the first ground.
9. In the result, we allow this appeal and set aside the impugned judgment and quash the detention order. We direct the detenu to be released forthwith from jail in connection with the detention order. (We make it clear that if he is required to be detained in any other case that would not be affected by this Court's judgment).
10. Copy of this judgment shall be forwarded to the chief secretary to the State of Tamil Nadu.
.