Dheenan @ Thambu v. The Secretary to Government Prohibition and Excise Department Secretariat Chennai 9.2

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.1433 of 2007Dheenan @ Thambu.. PetitionerVs1. The Secretary to Government Prohibition and Excise Department Secretariat Chennai 9.2. The District Collector & District Magistrate Coimbatore district Coimbatore... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.For Petitioner : Mr.S.A.SundaramurthyFor 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 detention asagainst the petitioner-detenu Dheenan @ Thambu, son of Raman, as thesaid authority arrived at the subjective satisfaction that the saiddetenu is a Goonda and he has to be detained under Section 3(1) of theTamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Officers, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. On the basis of a complaint lodged by one P.Gunasekaran @Chandru that on 2.4.2007 at about 7.00 pm, while he was in his housesituate at Door No.61, Convent Garden I Street, Kangayam Road,Tiruppur, along with his family members, the detenu along with fiveassociates, threatened him and his family members at the pistol pointand looted 100 sovereign gold jewels worth about Rs.3,00,000/- andcash of Rs.25,000/-, a case was registered in Crime No.218/2007 onthe file of Tiruppur North Police Station, for the offence punishableunder Section 395 IPC and Section 25 of the Indian Arms Act and thedetenu was arrested and remanded to judicial custody.2.2. Apart from the above, the detaining authority also tooknote of an adverse case pending against the detenu in Crime No.66 of2007 on the file of Kamanaickenpalayam Police Station for the offencepunishable under Section 395 IPC and Section 25 of the Indian ArmsAct2.3. The detaining authority, having satisfied that the detenuis indulging in activities which are prejudicial to maintenance ofpublic order, passed the impugned order.3. Challenging the said detention, the detenu himself has comeforward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to direct the respondents to produce the recordspertaining to his detention, by order of detention passed by thesecond respondent in Cr.M.P.No.7/G/2007/E4, dated 14.6.2007, to setaside the same and to direct the respondents to cause production ofbody and person of the detenu before this Court and to set him atliberty.4. Heard Mr.S.A.Sundaramurthy, learned counsel for thepetitioner and Mr.N.R.Elango, learned Additional Public Prosecutorfor the respondents.5. The only contention advanced by the learned counsel for thepetitioner is that there is considerable delay in considering therepresentation and the same has rendered the detention illegal.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 suggests thatthe obligation of the government is to offer the detenu anopportunity of making a representation against the order, before itis confirmed according to the procedure laid down under the relevantprovisions of law, vide K.M. Abdulla Kunhi v. Union of India, (1991) https://hcservices.ecourts.gov.in/hcservices/ 1 SCC 476 .6.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal by theState Government. Expedition is the rule and delay defeats mandate ofArticle 22(5) of the Constitution of India, vide Ram Sukrya 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 the detentionillegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 andRaghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 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, thewords “as soon as may be” in clause (5) of Article 22 convey themessage that the representation should be considered and disposed ofat the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in thedisposal of the representation. The court can certainly considerwhether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of anyindifference or lapse in considering the representation, such delaywill adversely affect further detention of the prisoner. In otherwords, it is for the authority concerned to explain the delay, ifany, in disposing of the representation. It is not enough to say thatthe 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 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 under Article21 of the Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitudein cases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.7. In the instant case, the impugned order of detention came tobe passed on 14.6.2007. A representation was made to the Governmentand the same was received by it on 26.6.2007. Remarks were called forfrom the detaining authority on 27.6.2007 and the remarks werereceived from the detaining authority by the Government on 9.7.2007.The file was considered by the Under Secretary and AdditionalSecretary on 10.7.2007. The Hon'ble Minister rejected therepresentation of the detenu on 11.7.2007, however the rejection https://hcservices.ecourts.gov.in/hcservices/ letter was prepared on 16.7.2007, viz., after a delay of threeworking days, excluding two public holidays. The delay inconsidering the representation, as indicated above, was highlightedby the learned counsel for the petitioner. There is no convincingreply on behalf of the State for the said delay. We find some forceas well as substance in this contention. There is absolutely noexplanation for this delay. 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 repeatedly overthe past three decades, the Executive, namely, the StateGovernment and its officers continue to behave in their old,lethargic fashion and like all other files rusting in theSecretariat for various reasons including red-tapism, therepresentation made by a person deprived of his liberty,continue to be dealt with in the same fashion. The Governmentand its officers will not give up their habit of maintaining aconsistent attitude of lethargy. So also, this Court will nothesitate in quashing the order of detention to restore the‘liberty and freedom’ to the person whose detention is allowedto become 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 considering therepresentation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperative andit would render the continued detention impermissible and illegal,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 .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 ordered asprayed for. The detention order dated 14.6.2007 is set aside.The detenu is directed to be set at liberty forthwith unless hiscustody is required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ATRTo:1. The Secretary to Government Home, Prohibition and Excise Department Fort St. George Chennai 9.2. The District Collector & District Magistrate Coimbatore district Coimbatore.3. The Superintendent Central Prison Coimbatore.4. The Public Prosecutor, High Court, Madras.5.The Joint Secretary to GovernmentPublic (Law & Order)Fort St. George, Chennai -9.VRK (CO)km/7.1.H.C.P.No.1433 of 2007