CORAMTHE HONOURABLE MR v. The Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9.2

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.1469 of 2007Rajamma.. PetitionerVs.1. The Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9.2. The Commissioner of Police Coimbatore City Coimbatore... RespondentsPRAYER: Petition filed under Article 226 of theConstitution of India to issue Habeas Corpus as statedtherein.For Petitioner : Mr.N.Edwin JeyakumarFor 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 ofdetention as against the detenu, husband of the petitioner,as the said authority arrived at the subjectivesatisfaction that the said detenu is a Goonda and he has tobe detained under Section 3(1) of the Tamil Nadu Preventionof Dangerous Activities of Bootleggers, Drug Offenders,Forest Officers, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (TamilNadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2.1. The order of detention dated 13.2.2007 was passed on thebasis of ground case that occurred on 22.1.2007, complaint of whichwas given by one Chandrasekar. According to the complainant, on22.1.2007 at about 09.45 pm when he was running a tiffin stall in apushcart, the detenu and his associate came there in a motorcycleand demanded Rs.500/-. When the complainant refused to give money,the detenu took a knife and threatened to slit his throat. Theassociate of the detenu forcibly took away Rs.500/- from the shirtpocket of the complainant. When few persons tried to catch thedetenu and his associate, the detenu brandished knife andthreatened to kill them. The public who were at the spot noticingthe atrocious activities ran for safer places out of fear of dangerto their lives and properties. Taking advantage of the situation,the detenu and his associate escaped from the spot. Based on thecomplaint given by the complainant, a case was registered in CrimeNo.130 of 2007 on the file of R.S.Puram Police Station, CoimbatoreCity. The case was taken up for investigation, the detenu wasarrested and remanded.2.2. The detaining authority also took note of four adversecases pending against the detenu, viz., Crime Nos.234 of 2004 and482 of 2005 on the file of Vadavalli Police Station for theoffences punishable under Sections 397 and 379 IPC; Crime No.495 of2006 on the file of Ramanathapuram Police Station for the offencepunishable under Section 379 IPC; and Crime No.89 of 2007 on thefile of R.S.Puram Police Station for the offence punishable underSection 379 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 wife of the detenu hascome forward with the present Habeas Corpus Petition seeking a writof habeas corpus to call for the records in C.No.10/G/18/2007,dated 13.2.2007 on the file of the second respondent herein, toquash the same as illegal and to consequently direct therespondents to produce the detenu, now confined in Central Prison,Coimbatore before this Court and to set him at liberty.4. Heard the learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor for therespondents. https://hcservices.ecourts.gov.in/hcservices/

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 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 is https://hcservices.ecourts.gov.in/hcservices/ involved, 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 vitallyimportant 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 13.2.2007. A representation was made to theGovernment on 4.9.2007 and the same was received by it 5.10.2007.Remarks were called for from the detaining authority on 8.10.2007and the remarks of the detaining authority were received by theGovernment on 16.10.2007. The file was considered by the UnderSecretary and the Additional Secretary on 17.10.2007 and the filewas considered by the Hon'ble Minister on 18.10.2007. However,rejection letter was prepared only on 23.10.2007, viz., after adelay of 3 days, excluding two public holidays. The delay, asindicated above, was highlighted by the learned counsel for thepetitioner. There is no convincing reply on behalf of the State forthe said delay. We find some force as well as substance in thiscontention. There is absolutely no explanation 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 detentionattracting Article 22 of the Constitution of India and therefore,the petition must succeed and the sameis ordered as prayed for. The detention order dated13.2.2007 is set aside. The detenu is directed to be set atliberty forthwith unless his custody is required in connection withany other case.sasi/atrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Fort St.George, Chennai – 9.2. The Commissioner of Police Coimbatore City Coimbatore.3. The Superintendent Central Prison, Coimbatore.4. The Inspector of Police, R. S. Puram Police Station, Coimbatore City.5. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 6. The Public Prosecutor High Court, Madras.VC(CO)SR/7.1.2008H.C.P.No.1469 of 2007