B.Guna @ Gunasekaran v. The Commissioner of Police Detaining Authority Coimbatore City, Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.1.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE P.R.SHIVA KUMARH.C.P.No.1746 of 2007B.Guna @ Gunasekaran.. PetitionerVs.1. The Commissioner of Police Detaining Authority Coimbatore City, Coimbatore.2. The Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9... RespondentsPetition filed under Article 226 of the Constitution of India toissue Habeas Corpus as stated therein.For Petitioner : Mr.M.DhamodharanFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Made by P.D.DINAKARAN,J.)The first respondent herein clamped an order of detention as againstthe petitioner herein, as the said authority arrived at the subjectivesatisfaction that the petitioner is a Goonda and has to be detained underthe provisions of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug Offenders, Forest Officers, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act,1982 (Tamil Nadu Act 14 of 1982).2.1. The order of detention dated 13.2.2007 came to be passed by thefirst respondent on the basis of the ground case in Crime No.130 of 2007on the file of B2, R.S.Puram Police Station for the offence punishableunder Section 397, IPC, complaint of which was given by one Chandrasekar.The complainant was running a tiffin stall in a pushcart near ThadagamRoad-Maruthamalai Road Junction. On 22.1.2007, at about 9.45 pm, thedetenu and his associate, came in a motor cycle and demanded Rs.500/-.When the complainant refused, the associate took a knife from his waistand threatened to slit his throat. At that time, the detenu forcibly took https://hcservices.ecourts.gov.in/hcservices/ Rs.500/- from his shirt pocket. The complainant, along with three others,tried to catch the detenu and his associate. Immediately, the detenu andhis associate threatened them that they would be done away if theyapproach them. On noticing the atrocious activities of the detenu and hisassociate, ran for safer places fearing danger to their lives, resultingin traffic dislocation. 2.2. Apart from the above, the detaining authority also took note ofsix adverse cases pending against the detenu, viz., Crime Nos.234/2004,403/2006 and 356/2006 on the file of Vadavlli Police Station, CrimeNos.806/2005 and 89/2007 on the file of R.S.Puram Police Station and CrimeNo.594/2006 on the file of Thudiyalur Police Station, for the offenceunder Section 379, IPC.2.3. The detaining authority, having satisfied that the detenu isindulging in activities which are prejudicial to maintenance of publicorder, passed the impugned order.3. Challenging the said detention, the cousin brother of the detenuhas come forward with the present Habeas Corpus Petition seeking a writ ofhabeas corpus to call for the records relating to the detention order inC.No.11/G/IS/2007, dated 13.2.2007 passed by the first respondent herein,to quash the same and to direct the respondent to produce the detenu, nowdetained in Central Prison, Coimbatore and to set him at liberty.4. Heard the learned counsel for the petitioner and Mr.N.R.Elango,learned Additional Public Prosecutor for the respondents.5. The only contention advanced by the learned counsel for thepetitioner is that there is a considerable delay in considering therepresentation and the same has rendered the detention illegal.6.1. Before delving into the issue relating to the delay as contendedabove, it would be apt to refer the law on the point.6.2. Article 22(5) of the Constitution of India suggests that theobligation of the government is to offer the detenu an opportunity ofmaking a representation against the order, before it is confirmedaccording to the procedure laid down under the relevant provisions of law,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 .6.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal by the StateGovernment. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India, vide Ram Sukrya Mhatre v. R.D. Tyagi,1992 Supp (3) SCC 65. https://hcservices.ecourts.gov.in/hcservices/

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 to considerthe representation forwarded by the detenu without any delay. Though noperiod is prescribed by Article 22 of the Constitution for the decision tobe taken on the representation, the words “as soon as may be” in clause(5) of Article 22 convey the message that the representation should beconsidered and disposed of at the earliest. But that does not mean thatthe authority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The court can certainlyconsider whether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of any indifference orlapse in considering the representation, such delay will adversely affectfurther detention of the prisoner. In other words, it is for the authorityconcerned to explain the delay, if any, in disposing of therepresentation. It is not enough to say that the delay was very short.Even longer delay can as well be explained. So the test is not theduration or range of delay, but how it is explained by the authorityconcerned. Even the reason that the Minister was on tour and hence therewas a delay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizen guaranteedunder Article 21 of the Constitution of India is involved, the absence ofthe Minister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitude incases involving the vitally important fundamental right of a citizen, videRajammal v. State of T.N., (1999) 1 SCC 417.7. In the instant case, the impugned order of detention came to bepassed on 13.2.2007. A representation was made to the Government on30.11.2007 and the same was received by it 3.12.2007. Remarks were calledfor from the detaining authority on 4.12.2007, which was received by thedetaining authority on 7.12.2007. The detaining authority, in turn,called for parawar remarks from the sponsoring authority on 8.12.2007itself and the same was received on 8.12.2007. The detaining authoritysent it to the Government on 18.12.2007, after a delay of seven days,excluding three public holidays. The delay in considering therepresentation, as indicated above, was highlighted by the learned counselfor the petitioner. There is no convincing reply on behalf of the Statefor the said delay. We find some force as well as substance in thiscontention. There is absolutely no explanation for the delay. 8. At this juncture, a reference to the decision of the Apex Court inKundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3 SCC194 is apposite:"In spite of law laid down above by this Court repeatedly over thepast three decades, the Executive, namely, the State Government and https://hcservices.ecourts.gov.in/hcservices/ its officers continue to behave in their old, lethargic fashion andlike all other files rusting in the Secretariat for various reasonsincluding red-tapism, the representation made by a person deprivedof his liberty, continue to be dealt with in the same fashion. TheGovernment and its officers will not give up their habit ofmaintaining a consistent attitude of lethargy. So also, this Courtwill not hesitate in quashing the order of detention to restore the‘liberty and 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 be supineindifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal of representationwould be a breach of the constitutional imperative and it would render thecontinued detention impermissible and illegal, vide K.M. Abdulla Kunhi v.Union of India, (1991) 1 SCC 476 .10. The delay which stands unexplained is fatal to the detentionorder attracting Article 22 of the Constitution of India and therefore,the petition must succeed and the same is ordered as prayed for.Consequently, the order of detention is set aside. The detenu isdirected to be set at liberty forthwith unless his custody is required inconnection with any other case.kplSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary to Government Home, Prohibition and Excise Department Fort St.George, Chennai – 9.2. The Commissioner of Police Coimbatore, Coimbatore City.3. The Superintendent of Central Prison Central Prison, Coimbatore.4. The Public Prosecutor High Court, Madras.5. The Joint Secretary, Public (Law & Order) Government of Tamil Nadu, Fort St.George, Chennai-600 009.+1 cc to M.Dhamodharan, Advocate Sr.No.3084.MDR(CO)DCP/30.1H.C.P.No.1746 of 2007.