Madras High Court
V.Kareem Nisha vs Government Of Tamilnadu on 24 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1859/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 24.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1859/2023
V.Kareem Nisha .. Petitioner
Versus
1.Government of Tamilnadu
Home, Prohibition & Excise [XVI] Department
Fort St Street, Chennai-600 009.
2.The District Collector & District Magistrate
Ranipet District, Ranipet.
3.The Superintendent of Police
Ranipet, Ranipet District.
4.The Inspector of Police
Arakkonam Town Police Station
Ranipet District.
5.The Superintendent of Jail
Central Prison, Salem. .. Respondents
1
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HCP.No.1859/2023
Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for a Writ of Habeas Corpus calling for the records in
detention order B3/D.O.No.19/2023 dated 19.06.2023 on the file of the 2 nd
respondent herein and quash the same and direct the respondent herein to
produce the body of petitioner son Riyaz Ahamed son of Vasivulla aged
about 20 years now confined in Central Prison, Salem before this Court and
set him at liberty.
For Petitioner : Mr.A.Vijaysankar
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by Mr.Aravind.C
ORDER
[Order of the Court was made by S.S.SUNDAR, J.]
(1)The petitioner, mother of the detenu, has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
19.06.2023 slapped on her son, branding him as "Drug Offender" under
the Tamil Nadu Act 14 of 1982.
(2)Heard the learned counsel for the petitioner and the learned Additional
Public Prosecutor appearing for the respondents.
(3)The learned counsel for the petitioner though canvassed several points
before this Court, this Court is able to find some force in his submission
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that there is no application of mind on the part of the Detaining Authority
in arriving at the subjective satisfaction. Learned counsel pointed out that
the Detaining Authority has not relied upon any similar case to arrive at
the subjective satisfaction and has merely stated that ''as bails are being
granted by courts in such cases, there is most likely that of his [Thiru
Riyaz Ahamed] would be coming out of bail, by filing any bail
application in appropriate court.'' This statement of the Detaining
Authority without any material, is ipse dixit and suffers from non
application of mind. Hence, on the above ground, the Detention Order is
liable to be quashed.
(4)From a perusal of the Grounds of Detention, in particular, paragraph
No.5, it is seen that the Detaining Authority has arrived at the subjective
satisfaction that the detenu would be coming out on bail by filing bail
application before the appropriate Court by recording the fact that the
detenu is taking steps to file the bail application through his relative.
However, it is to be pointed out that this statement of the Detaining
Authority is not based on any materials and there is no reference to any
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similar cases to arrive at such subjective satisfaction. This subjective
satisfaction of the Detaining Authority is mere ipse dixit and suffers from
non-application of mind.
(5)The Hon'ble Supreme Court, in the case of Rekha Vs. State of Tamil
Nadu through Secretary to Government and Another reported in 2011
[5] SCC 244, has considered a case where it is stated that in the grounds
of detention that relatives of detenu are taking action to take him on bail
in the criminal case in which the detenu was in remand and that in similar
cases, bail was granted by Courts. Since no details had been given about
the alleged similar cases in which bail was allegedly granted by the Court
concerned, it is held by Hon'ble Supreme Court that in the absence of
details, the statement which is mere ipse dixit, cannot be relied upon and
that itself is sufficient to vitiate the detention order. When the subjective
satisfaction was irrational or there was non-application of mind, the
Hon'ble Supreme Court held that the order of detention is liable to be
quashed. It is relevant to extract paragraphs No.10 and 11 of the said
judgment of the Hon'ble Supreme Court:-
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''10. In our opinion, if details are given by the
respondent authority about the alleged bail orders in
similar cases mentioning the date of the orders, the
bail application number, whether the bail order was
passed in respect of the co-accused in the same case,
and whether the case of the co-accused was on the
same footing as the case of the petitioner, then, of
course, it could be argued that there is likelihood of
the accused being released on bail, because it is the
normal practice of most courts that if a co-accused has
been granted bail and his case is on the same footing
as that of the petitioner, then the petitioner is
ordinarily granted bail. However, the respondent
authority should have given details about the alleged
bail order in similar cases, which has not been done in
the present case. A mere ipse dixit statement in the
grounds of detention cannot sustain the detention
order and has to be ignored.
11. In our opinion, the detention order in
question only contains ipse dixit regarding the alleged
imminent possibility of the accused coming out on bail
and there was no reliable material to this effect.
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Hence, the detention order in question cannot be
sustained.''
(6)The second contention raised by the learned counsel for the petitioner is
the delay in considering the representation of the detenu, dated
11.09.2023. According to the learned counsel for the petitioner, the
representation dated 11.09.2023, was received by the Government on
14.09.2023 ; and though the file has been dealt with by the Deputy
Secretary on the same day, i.e., on 14.09.2023, the Minister concerned
dealt with the file only on 18.09.2023 and the Rejection Letter prepared
on 19.09.2023 was sent to the detenuon 20.09.2023. It is the further
submission of the learned counsel that this three days inordinate delay in
considering the representation remains unexplained and the same vitiates
the detention order. In support of his contention, the learned counsel for
the petitioner relied on the judgment of the Hon'ble Supreme Court in
Rajammal vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.
(7)As per the submission of the learned counsel for the petitioner and on
perusal of the records, we find that, the representation of the detenu,
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dated 11.09.2023, which was received by the Government on 14.09.2023,
was dealt with by the Minister concerned only on 18.09.2023 and the
Rejection Letter was prepared on the next day. Thus, we find there is a
considerable delay of three days [after excluding the intervening Saturday
and Sunday [16.09.2023 and 17.09.2023]] in considering the
representation of the petitioner. This delay in considering the detenu's
representation remain unexplained.
(8)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 inordinate
delay. Therefore, we have to hold that the delay has vitiated further
detention of the detenu.
(9)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
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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."
(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 three days,
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 Hon'ble 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.
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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.
(13) In view of the ratio laid down by the Hon'ble Supreme Court and in
view of the aforesaid reason, this Court is of the view that the detention
order is liable to be quashed.
(14)Accordingly, the detention order passed by the 2nd respondent dated
19.06.2023 in B3/D.O.No.19/2023 is hereby set aside and the Habeas
Corpus Petition is allowed. The detenu is directed to be set at liberty
forthwith unless he is required in connection with any other case.
[S.S.S.R., J.] [S.M, J.]
24.11.2023
mkn
Internet : Yes
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To
1.Government of Tamilnadu
Home, Prohibition & Excise [XVI] Department
Fort St Street, Chennai-600 009.
2.The District Collector & District Magistrate
Ranipet District, Ranipet.
3.The Superintendent of Police
Ranipet, Ranipet District.
4.The Inspector of Police
Arakkonam Town Police Station
Ranipet District.
5.The Superintendent of Jail
Central Prison, Salem.
6.The Public Prosecutor
High Court, Madras.
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S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
mkn
24.11.2023
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