Bharkavi v. The District Collector & District Magistrate Cuddalore district Cuddalore.2. The Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1430 of 2007Bharkavi.. PetitionerVs1. The District Collector & District Magistrate Cuddalore district Cuddalore.2. The Secretary to Government Prohibition and Excise Department Government of Tamilnadu Fort St. George, Chennai 9... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus as stated therein.For Petitioner : Mr.S.SaravananFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detentionas against the detenu Bakiyaraj, husband of the petitioner, asthe said authority arrived at the subjective satisfaction thatthe said detenu is a Goonda and he has to be detained underSection 3(1) of the Tamil Nadu Prevention of Dangerous Activitiesof Bootleggers, Drug Offenders, Forest Officers, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and VideoPirates Act, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 17.5.2007 came to bepassed by the second respondent on the basis of the ground casein Crime No.153 of 2007 on the file of Neyveli Township PoliceStation for the offences punishable under Sections 147, 148, 341,294(b), 323, 336, 394, 506(ii) and 307 IPC, complaint of whichwas given by one Selvabalan. On 19.4.2007, when the complainantwas standing alone on Neyveli Township bazaar junction road, thedetenu and his associates suddenly surrounded him and shoutedthat how dare he would stand as a witness in Jothi Rajendiranmurder case and that nobody would mind if he was killed by themand with intention to cause his death, they joined together andbeat him. The detenu forcibly took away Rs.310/- from the shirtpocket of the complainant. The public seeing the atrociousactivities of the detenu and his associates ran for safer placesout of fear of danger. Taking advantage of the panic situation,the detenu and his associates escaped from the spot. Based onthe complaint, the case was taken up for investigation and thedetenu was arrested.2.2. Apart from the above, the detaining authority also tooknote of three adverse cases pending against the detenu in CrimeNos.169/2005, 331/2005 and 8/2007 on the file of Neyveli TownshipPolice Station for the offences punishable under Sections 147,148, 324, 326, 506(ii), 307, 302 and 120-B IPC.2.3. The detaining authority, having satisfied that thedetenu is indulging in activities which are prejudicial tomaintenance of public order, passed the impugned order.3. Challenging the said detention, the petitioner has comeforward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to direct the respondents to produce the recordspertaining to the detention of the detenu, by order of detentionpassed by the second respondent in Ref.No.C3/D.O/21/2007, dated17.5.2007, to set aside the same and to direct the respondents tocause production of body and person of the detenu before thisCourt and to set him at liberty.4. Heard Mr.S.Saravanan, learned counsel for the petitionerand Mr.N.R.Elango, learned Additional Public Prosecutor for therespondents.5. The only contention advanced by the learned counsel forthe petitioner is that there is considerable delay in consideringthe representation and the same has rendered the detentionillegal. https://hcservices.ecourts.gov.in/hcservices/

6.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.6.2. Article 22(5) of the Constitution of India suggeststhat the obligation of the government is to offer the detenu anopportunity of making a representation against the order, beforeit is confirmed according to the procedure laid down under therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 .6.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal bythe State Government. Expedition is the rule and delay defeatsmandate of Article 22(5) of the Constitution of India, vide RamSukrya Mhatre v. R.D. Tyagi, 1992 Supp (3) SCC 65.6.4. Any inordinate and unexplained delay on the part of theGovernment in considering the representation renders thedetention illegal, vide Tara Chand v. State of Rajasthan, (1980)2 SCC 321 and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1SCC 650.6.5. It is a constitutional obligation of the Government toconsider the representation forwarded by the detenu without anydelay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on the representation,the words “as soon as may be” in clause (5) of Article 22 conveythe message that the representation should be considered anddisposed of at the earliest. But that does not mean that theauthority is pre-empted from explaining any delay which wouldhave occasioned in the disposal of the representation. The courtcan certainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering therepresentation, such delay will adversely affect furtherdetention of the prisoner. In other words, it is for theauthority concerned to explain the delay, if any, in disposing ofthe representation. It is not enough to say that the delay wasvery short. Even longer delay can as well be explained. So thetest is not the duration or range of delay, but how it isexplained by the authority concerned. Even the reason that theMinister was on tour and hence there was a delay of five days indisposing of the representation was rejected by the Apex Courtholding that when the liberty of a citizen guaranteed underArticle 21 of the Constitution of India is involved, the absenceof the Minister at head quarters is not sufficient to justify thedelay, since the file could be reached the Minister with utmostpromptitude in cases involving the vitally important fundamental https://hcservices.ecourts.gov.in/hcservices/ right of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC417.7. In the instant case, the impugned order of detention cameto be passed on 17.5.2007. A representation was made to theGovernment and the same was received by it on 28.6.2007. Remarkswere called for from the detaining authority on 28.6.2007 and theremarks were received from the detaining authority by theGovernment on 5.7.2007. The file was considered by the UnderSecretary and Additional Secretary on 6.7.2007. The Hon'bleMinister rejected the representation of the detenu on 9.7.2007,however the rejection letter was prepared on 16.7.2007, viz.,after a delay of five working days, excluding two publicholidays. The delay in considering the representation, asindicated above, was highlighted by the learned counsel for thepetitioner. There is no convincing reply on behalf of the Statefor the said delay. We find some force as well as substance inthis contention. There is absolutely no explanation for thisdelay. 8. At this juncture, a reference to the decision of the ApexCourt in Kundanbhai Dulabhai Sheikh v District Magistrate,Ahmedabad, (1996) 3 SCC 194 is apposite:"In spite of law laid down above by this Court repeatedlyover the past three decades, the Executive, namely, theState Government and its officers continue to behave intheir old, lethargic fashion and like all other filesrusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprivedof his liberty, continue to be dealt with in the samefashion. The Government and its officers will not give uptheir habit of maintaining a consistent attitude oflethargy. So also, this Court will not hesitate inquashing the order of detention to restore the ‘libertyand freedom’ to the person whose detention is allowed tobecome bad by the Government itself on account of hisrepresentation not being disposed of at the earliest.” 9. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in consideringthe representation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperativeand it would render the continued detention impermissible andillegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC476. https://hcservices.ecourts.gov.in/hcservices/

10. The delay which stands unexplained would fatalise thedetention attracting Article 22 of the Constitution of India andtherefore, the petition must succeed and the same is orderedas prayed for. The detention order dated 17.5.2007 is setaside. The detenu is directed to be set at liberty forthwithunless his custody is required in connection with any other case.ATRSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The District Collector & District Magistrate Cuddalore district Cuddalore.2. The Secretary to Government Prohibition and Excise Department Government of Tamilnadu Fort St. George, Chennai 9.3. The Superintendent Central Prison Cuddalore.4. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9.5. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. S. Saravanan, Advocate SR No. 72674CU(CO)SR/5.1.2008H.C.P.No.1430 of 2007