CORAMTHE HONOURABLE MR v. The District Collector and District Magistrate Villupuram District Villupuram.2. The Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.12.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1435 of 2007Ezhumalai.. PetitionerVs.1. The District Collector and District Magistrate Villupuram District Villupuram.2. The Secretary to Government Government of Tamilnadu Prohibition & Excise Department Fort St.George, Chennai-9... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue Habeas Corpus as stated therein.For Petitioner : Mr.S.SasikumarFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The first respondent herein clamped an order of detention asagainst the detenu/petitioner, as the said authority arrived atthe subjective satisfaction that the said detenu is a Goonda andhe has to be detained under Section 3(1) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Officers, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil NaduAct 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 19.8.2007 was passed on thebasis of ground case that occurred on 26.7.2007 at about 10.30 a.m.It is stated that on the said day, when one John Mohan(complainant) and his friend went to a hotel on motor cycle, thedetenu and nine associates formed an unlawful assembly with acommon object to commit dacoity, wrongly restrained the complainantand his friend and demanded money. The detenu and his associatesshowed knife and threatened the complainant and his friend. Thedetenu took away Rs.1500/- from the shirt pocket of thecomplainant. On hearing the shouting of witnesses, the public triedto catch the offenders, the detenu and his associates, however,showed knives and threatened to kill them. The public who were atthe spot noticing the atrocious activities scattered into alldirections and taking advantage of the situation the detenu and hisassociates escaped. Based on the complaint given by thecomplainant, a case in Crime No.408 of 2007 was registered on thefile of Mailam Police Station for the offence punishable underSections 147, 341, 323, 294(b), 506(ii) and 397 IPC. Investigationwas taken up by the Inspector of Police, Mailam Police Station andthe detenu was arrested and remanded.2.2. The detaining authority also took not of two adversecases pending against the detenu, viz., Crime Nos.134 of 2003 and491 of 2006 on the file of Mailam Police Station for the offencespunishable under Sections 147, 148, 341, 323, 324, 307 read with149 and 302 read with 149 IPC and Section 3(2)(v) and 3(1)(x) ofthe SC/ST Act.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 detenu has comeforward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to call for the records in C2/36539/2007, dated19.8.2007 on the file of the first respondent herein, to quash thesame as illegal and to consequently direct the respondents toproduce him, now confined in Central Prison, Cuddalore, before thisCourt and to set him at liberty.4. Heard the learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor for therespondents.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. 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 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 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 by theState Government. Expedition is the rule and delay defeats mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre 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 321and Raghavendra 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,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 would haveoccasioned in the disposal of the representation. The court cancertainly 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 further detentionof the prisoner. In other words, it is for the authority concernedto explain the delay, if any, in disposing of the representation.It is not enough to say that the delay was very short. Even longerdelay can as well be explained. So the test is not the duration orrange of delay, but how it is explained by the authority concerned.Even the reason that the Minister was on tour and hence there was adelay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizenguaranteed under Article 21 of the Constitution of India isinvolved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reachedthe Minister with utmost promptitude in cases involving the vitally https://hcservices.ecourts.gov.in/hcservices/ important fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.7. In the instant case, the impugned order of detention cameto be passed on 19.8.2007. A representation was made to theGovernment on 22.9.2007 and the same was received by it 24.9.2007.Remarks were called for from the detaining authority on 25.9.2007.The remarks of the detaining authority were obtained by theGovernment on 3.10.2007. The file was considered by the UnderSecretary on 5.10.2007 and by the Additional Secretary on8.10.2007. The Hon'ble Minister dealt with the file and rejectedthe representation of the detenu on 8.10.2007, but the rejectionletter was prepared only on 11.10.2007, viz., after a delay ofthree days. The delay, as indicated above, was highlighted by thelearned counsel for the petitioner. There is no convincing reply onbehalf of the State for the said delay. We find some force as wellas 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 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 deprived ofhis liberty, continue to be dealt with in the same fashion.The Government and its officers will not give up their habitof maintaining a consistent attitude of lethargy. So also,this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by the Governmentitself on account of his representation not being disposedof 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/ The delay which stands unexplained is fatal to the detentionorder attracting Article 22 of the Constitution of India andtherefore, the petition must succeed and the sameis ordered as prayed for. The detention order dated19.8.2007 is set aside. The detenu is directed to be set atliberty forthwith unless his custody is required in connection withany other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sasiTo:1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Fort St.George, Chennai – 9.2. The District Collector and District Magistrate Villupuram District Villupuram.3. The SuperintendentCentral Prison,Cuddalore(In duplicate for communication to detenue)4. The Joint secretary to GovernmentPublic (Law and order Department)Fort St George, Chennai-9.5. The Public Prosecutor High Court, Madras.H.C.P.No.1435 of 2007NTK (CO)kk 26/12 https://hcservices.ecourts.gov.in/hcservices/

10.12.2007