AMSA Vs. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR TRICHY

JUDGEMENT

(1.) THE petitioner, Mrs. Amsa is the wife of the detenue, selvam son of Karuppanna Gounder, who has been put in preventive detention by order dated 27. 10. 1993 passed by the first respondent purporting to be in exercise of powers conferred by Sec. 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, (hereinafter referred to as'the act') and claims that the custody of her husband is illegal and unconstitutional. She has, therefore, filed this petition invoking this Court's jurisdiction under Art. 226 of the Constitution of India claiming a writ of habeas corpus for release of her husband.

(2.) IT appears that on 5. 10. 1993 the Sub-Inspector of police, Law and Order, Karur Town , conducted a raid at Church Road , vengamedu and found the detenu with a mud pot containing about 25 litres of illicitly distilled arrack. IT is alleged that the detenu on seeing the police party, tried to escape but was apprehended and arrested at 6 P. M. The pot with 200 litres of I. D. arrack along with a glass tumbler and a sum of Rs. 5 purporting to be sale proceeds thereof, was recovered from him. The sample of 500 ml. of arrack was kept in two sealed bottled and eventually sent to the chemical Examiner, who, in his report dated 13. 10. 1993 held that the sample contained ethyl alcohol, acids, eters, higher alcohols and aldehydes and contained atropine of 5. 10 mg w/v. The Chemical Examiner also opined that atropine was a poisonous substance. A criminal case was registered against the detenu at the police station Karur Town, and he was produced before the judicial Magistrate No. II, Karur on 6. 10. 1993 for remand. He has later released on bail through court. During the course of investigation the Medical officer, Government Hospital, Karur was examined to obtain his opinion about the I. D. Arrack. According to the Medical Officer, if any person consumed I. D, arrack mixed with atropine of 0. 64 mg% w/v and above he will develop giddiness, vomitting, congestion of eye lids and respiratory failure, which if not treated vigorously will result in death. The first respondent considered the aforesaid material collected during investigation against the detenu including his earlier antecedents and found that there were seven earlier criminal cases under Sec. 4 (1) of the T. N. Prohibition Act, 1937 registered against the detenu and he had been in all of them convicted and sentenced to payment of fine. These cases related to the years 1992 and 1993. The first respondent, therefore, held that the detenu was a bottlegger involved in selling I. D. Liquor mixed with poisonous substance which is likely to cause widespread danger to public order and public health. The first respondent further held that since the detenu was on bail he may also indulge in aforesaid prejudicial activities in future. The first respondent therefore, held that he was satisfied that if the detenu is led to remain at large, he. will indulge in future activities prejudicial to the maintenance of public order. He, therefore, held that there was a compelling necessity to detain him in custody under the Act. That is how the impugned detention order was passed and the detenu taken in custody. While in custody he was given copies of the impugned order and grounds of detention which were read over and explained in Tamil. The constitutional validity of this order is under challenge in this writ petition.

(3.) AS regards delay in disposal of representation it has been the view of this Court in K. Chelliah alias Sulli v. The Commissioner and secretary to Government, 1988 L. W. (Crl.) 238, that the representation received from a detenu must be disposed of with utmost expedition and it must receive active and continuous consideration and the failure to do so would vitiate the detention order. In the said case the Court concluded that the delay of 28 days was not explained and, therefore, held that the same was fatal justifying the issue of a writ of habeas corpus. The matter has also received attention of the supreme Court in Birendra Kumar Rai v. Union of India, (1993) 1 S. C. C. 272 and hawabi Syed Arif Sayed Hanif (Smt.) v. L. Hmingliana, (1993)1 S. C. C. 163 and also Ram Sukrya Mhatre v. T. D. Tyagi, A. I. R. 1994 S. C. 1134. The Supreme Court has in these cases held that mere delay in disposal of representation is not fatal and the delay if adequately explained, showing absence of callousness or causal or leisurely treatment of representation will not give any benefit to the detenu. In Ram Sukrya's case, it is clarified that no time-frame, for disposal of the representation can be prescribed and each case will have to be decided on its own facts. In Hawabi Syea's case, the need to show prejudice because of the delay was also emphasised, These cases, therefore, lay down that though the, representation should be decided as early as possible and without delay, no time, frame for the said purpose can be prescribed. The delay caused because of, inaction or leisurely treatment of the representation showing callous negligence on the part of the authority would however vitiate the action. If the facts of the present case are considered in the light of the aforesaid principle no benefit would accrue to the petitioner. The petitioner has addressed his representation to the Governor and not the Secretary to the government as required of him by para. 7 of the grounds of detention. The file indicates that the said representation was received by the department on 11. 3. 1994 and finally decided on 27. 4. 1994. In, between the para-wise reply of the representation was received from the District Magistrate, Trichy. There is neither any allegation of callous indifference or negligence in dealing with the representation nor any such inference can be drawn from the facts on record. Under the circumstances, it is a case of mere delay caused because of the distance and the procedure required to be followed in dealing with the matter. Under the circumstances, delay in disposal of representation would not vitiate the impugned order.