Pathumuthu v. The State of Tamil Nadu

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 12.12.2011CORAM:THE HONOURABLE MR.JUSTICE.M.JAICHANDRENANDTHE HONOURABLE MR.JUSTICE.S.NAGAMUTHUH.C.P.(MD)No.505 of 2011Pathumuthu: PetitionerVs1.The State of Tamil Nadu, rep.by the Secretary to Government, Public(SC)Dept., Fort.St.George, Chennai-600 009. 2.The Union of India, rep.by the Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA-UNIT), New Delhi. 3.The Superintendent of Central Prison, Central Prison, Puzhal, Chennai-600 066. 4.The Passport Officer, Regional Passport Office, Tiruchirapalli.: RespondentsPetition filed under Article 226 of the Constitution of India toissue a Writ of Habeas Corpus Petition filed seeking to call for therecords relating to the detention order in G.O.No.S.R.1/807-10/2010,dated 28.05.2011, passed by the first respondent herein and quash thesame and direct the respondent to produce the body of the person of thedetenu, namely, Ibrahim Mohamed Iqbal, aged about 38 years, son ofIbrahim, before this Court, now detained under Section 3(1)(i) of theCOFEPOSA Act in the Central Prison, Puzhal, Chennai and set him atliberty forthwith.For Petitioner : Mr.S.PalanikumarFor R.1 & 3: Mr.A.Ramar Additional Public Prosecutor For R.2: Mr.B.Vijay Karthikeyan Senior Standing Counsel for Customs & Central ExciseFor R.4: Mr.K.AyyanarO R D E R [Order of the Court was made by M.JAICHANDREN.J]This Habeas Corpus petition has been filed to call for the recordsrelating to the detention order of the first respondent, dated28.05.2011, in G.O.No.SR.1/807-10/2010, and quash the same and direct therespondents to produce the detenu, namely, Ibrahim Mohamed Iqbal, aged https://hcservices.ecourts.gov.in/hcservices/ 2about 38 years, detained under Section 3(1)(i) of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, 1974,(Central Act 52 of 1974), in the Central Prison, Chennai, before thisCourt and to set him at liberty.2. It has been stated that the petitioner is the wife of the detenu.She had stated that the first respondent had passed the impugneddetention order, dated 28.05.2011, in exercise of the powers conferred bySection 3(1)(i) of the Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974, (Central Act 52 of 1974), directing thedetention of Ibrahim Mohamed Iqbal, the husband of the petitioner, in theCentral Prison, Chennai.3. It has been stated that the detenu is an innocent person. He hadnot committed any offence, either under the Customs Act or under the FEMAAct. The detenu had never indulged in any smuggling activities, asalleged by the first respondent. The detenu had come from Colombo,Srilanka, and he had arrived at the Anna International Airport, Chennai,on 11.11.2010. While so, the Immigration Officers attached to the CustomsDepartment had intercepted him stating that he had smuggled gold intoIndia, without making the necessary declarations. The Customs Officerconcerned had examined the detenu and had recovered 668 grams of goldfrom him and it had been assessed its value at Rs.13,60,716.00. TheOfficers had also prepared a seizure mahazar. Thereafter, the detenu hadbeen arrested, on 11.11.2010, on the allegation that he had contravenedthe provisions of the Customs Act,1962. 4.Even though various grounds had been raised by the petitioner,in the present Habeas Corpus petition, while challenging the order ofdetention, passed by the first respondent, the learned counsel appearingon behalf of the petitioner had submitted that the order of detentionpassed by the first respondent, on 28.05.2011, is liable to be set aside,merely on the ground of delay in the disposal of the representation,dated 10.06.2011 , made on behalf of the detenu, to the state Government,as well as to the central Government. 5.The petitioner had submitted that the State Government and theCentral Government, are vested with independent powers to revoke or tomodify the detention order, at any time, as per Section 11 of theCOFEPOSA Act.6.The petitioner has stated that a representation, dated10.06.2011, had been sent on behalf of the detenu, to the StateGovernment, as well as to the Central Government. However, there has beenan undue delay in disposing of the said representation, as it had beenrejected by the State Government and the Central Government only, on28.06.2011 and 19.07.2011, respectively. However, there is no proper andacceptable explanation for the undue delay caused in the disposal of therepresentation made on behalf of the detenu. As such, the detention orderpassed by the first respondent, on 28.05.2011, is liable to be set aside.7.In the counter affidavit filed on behalf of the firstrespondent, the averments and the allegations made in the affidavit filedin support of the Habeas Corpus petition had been denied. It has beenstated that the detention order passed by the first respondent, on https://hcservices.ecourts.gov.in/hcservices/

328.05.2011, is valid, as it has been passed in accordance with theprocedures established by law. It has been further stated that there isno delay in the disposal of the representation made on behalf of thedetenu.8.In paragraph 2.1 of the counter affidavit filed on behalf of thesecond respondent, it is stated as follows:-“With regard to the averments referred to in Para-20 of thePetition insofar these relate to the Respondent No.2 i.e. Union ofIndia, it is respectfully submitted that as per records maintainedin the COFEPOSA Unit of the Department of Revenue, New Delhi, acopy of the purported representation dated 10.06.2011 in Tamillanguage in respect of Shri Ibrahim Mohamed Iqbal, COFEPOSA Detenuand the husband of the Petitioner herein was received in theCOFEPOSA Unit of the Ministry of Finance, Department of Revenue,New Delhi, on 17.06.2011 from the Superintendent of Central Prison,Puzhal, Chennai. Parawise comments on the representation along withthe English translation thereof were called for from the SponsoringAuthority, viz. the Commissioner of Customs (COFEPOSA - Air),Chennai as well as the Detaining Authority viz. public (Law &Order) Department, Government of Tamil Nadu, Chennai on 17.06.2011itself. The comments of the Sponsoring Authority on therepresentation along with the English translation of the same, sentvide letter dated 20.06.2011 were received in the COFEPOSA Unit ofMinistry of Finance, / Department of Revenue, New Delhi on24.06.2011. The comments of the Detaining Authority on therepresentation, sent vide letter dated 21.06.2011, were received inthe COFEPOSA Unit of Ministry of Finance, Department of Revenue,New Delhi on 24.06.2011. COFEPOSA Section submitted the file alongwith all the relevant files & documents to the Deputy Secretary(COFEPOSA) on 24.06.2011 for examination. On examination, DeputySecretary (COFEPOSA) found that the information furnished by theDetaining Authority and Sponsoring Authority were incomplete.Therefore, vide Ministry's letters both dated 28.6.2007, theDetaining Authority and Sponsoring Authority were asked to furnishsome additional information. The information of the DetainingAuthority, sent vide letter dated 01.07.2011, were received in theCOFEPOSA Unit of Ministry of Finance, Department of Revenue, NewDelhi on 06.07.2011. The information of the Sponsoring Authority,sent vide letter dated 08.07.2011, were received in the COFEPOSAUnit of Ministry of Finance, Department of Revenue, New Delhi on11.07.2011. COFEPOSA Section submitted the file alongwith all therelevant files & documents to the Deputy Secretary (COFEPOSA) on11.07.2011 for examination. After conducting detailed examinationof the issues raised in the representation and the comments of theSponsoring Authority and Detaining Authority thereon, the DeputySecretary (COFEPOSA) submitted the file with a comprehensive noteto the Additional Secretary (Cofeposa) on 18.07.2011. AdditionalSecretary (Cofeposa), in turn, submitted the file to the SpecialSecretary& Director General, Central Economic Intelligence Bureau,New Delhi on 19.07.2011. The said representation was considered bythe Special Secretary & Director General, Central EconomicIntelligence Bureau, Ministry of Finance, Department of Revenue,New Delhi, on behalf of the Central Government and the same wasrejected by him on 19.07.2011, being devoid of merit. The file was https://hcservices.ecourts.gov.in/hcservices/ 4received back in the COFEPOSA Unit on 19.07.2011. The detenu wasintimated about the rejection of the representation dated10.06.2011, vide memorandum dated 19.07.2011.”9.In paragraph 2.1 of the counter affidavit filed on behalf of thesecond respondent, it has been stated that a copy of the representationmade on behalf of the detenu, on 10.06.2011, had been received in theCOFEPOSA Unit of the Ministry of Finance, Department of Revenue, NewDelhi, on 17.06.2011, from the Superintendent of Central Prison, Puzhal,Chennai. Parawise comments on the representation, along with englishtranslation thereof were called for from the sponsoring authority,namely, the Commissioner of Customs (COFEPOSA-Air), Chennai, as well asthe Detaining Authority, namely, Public (Law and Order), Department,Government of Tamil Nadu, Chennai, on 17.06.2011. The comments of thesponsoring authority, along with the english translation of the same hadbeen received in the COFEPOSA Unit of the Ministry of Finance, Departmentof Revenue, New Delhi, on 24.06.2011. 10. It has also been stated that the complete information from thesponsoring authority had been received by the COFEPOSA Unit, Ministry ofFinance, Department of Revenue, New Delhi, only on 11.07.2011. Afterconducting a detailed examination of the issues raised in therepresentation made on behalf of the detenu, the comments of thesponsoring authority and the detaining authority, the Deputy Secretary(COFEPOSA) had submitted the file, with a comprehensive note, to theAdditional Secretary (COFEPOSA), on 18.07.2011. The Additional Secretary(COFEPOSA), had submitted the file to the Special Secretary and DirectorGeneral, Central Economic Intelligence Bureau, New Delhi, on 19.07.2011.Thereafter, the said representation had been considered by the SpecialSecretary and Director General, Central Economic Intelligence Bureau,Ministry of Finance, Department of Revenue, New Delhi, on behalf of theCentral Government and it had been rejected by him, on 19.07.2011,stating that the said representation is devoid of merits. Thereafter,the detenu had been intimated about the rejection of the representation,dated 10.06.2011, vide memorandum, dated 19.07.2011.11.From the above statements made in paragraph 2.1 of the counteraffidavit filed on behalf of the second respondent, it is clear thatthere has been an inordinate delay in the disposal of the representationmade on behalf of the detenu, by the Central Government.11.a. Para 14 of the counter affidavit filed on behalf of the firstrespondent reads as follows:-“As far as the averments made in paragraph 20 of the affidavit areconcerned, it is submitted that the representation of the detenudated 08-06-2011 and signed as 10-06-2011 was received by theGovernment through the Superintendent, Central Prison, Chennai on13-06-2011 and it was disposed of on 27-06-2011 as follows:-Representation of the detenu dated 08-06-2011 andsigned as 10-06-2011 was received by theGovernment through the Superintendent, Central Prison,Chennai on : 13-06-2011 https://hcservices.ecourts.gov.in/hcservices/ 5Parawar remarks called for from theCustoms Department on : 13-06-2011Remarks received from the CustomsDepartment on: 14.06.2011File sent to the Public (SC) Department on : 15-06-2011File returned fromthe Public (SC) Department on: 16-06-2011Further particulars called for from the Customs Department on: 17-06-2011Saturday: 18-06-2011 Sunday: 19-06-2011Further remarks received from the Customs Department on : 23-06-2011Circulation note was put up on: 24-06-2011Under Secretary to Government, Public (Law & Order) Department, considered the representation on:24-06-2011Additional Secretary to Government, Public (Law & Order) Department, considered the representation on : 24-06-2011Secretary to Government,Public Department,considered the representation on: 25-06-2011Saturday : 25-06-2011 Sunday: 26-06-2011Additional Secretary to Government,Law Department,considered the representation on:27.06.2011Honourable Minister for Law considered and rejected the representation on: 27-06-2011Reply sent to the detenu on : 28-06-2011Detenu received the letter under acknowledgment on: 29-06-2011The representation was received on 13-06-2011 and it was disposed of on27-06-2011. In between 13-06-2011 and 27-06-2011, there were fifteendays. Out of these fifteen days, there were four Government holidays.Excluding these holidays, the representation was continuously andcarefully considered and disposed of within eleven days and there was no https://hcservices.ecourts.gov.in/hcservices/ 6undue and unexplained delay in considering the representation.Further, it is submitted that as requested by the detenu, a copy ofthe above representation was also forwarded to the Government of India,in Government letter No.3017/L&O-F/2011-5, Public (Law & Order-F)Department, dated:21-06-2011. The same was considered by the Governmentof India and rejected on 19-07-2011. This information wasfurnished to the detenu by the Government of India and the letter wasserved to the detenu on 21-07-2011 under acknowledgment.”12.The learned counsel appearing on behalf of the first respondenthad submitted that there is no delay on the part of the State Governmentin disposing of the representation made on behalf of the detenu, on10.06.2011, as stated in paragraph 14 of the counter affidavit. 13.The learned counsel had submitted that the representation, dated10.06.2011, made on behalf of the detenu, to the State Government, hadbeen forwarded to the Central Government in Government letterNo.3017/L&O-F/2011-5, Public (Law & Order-F) Department, dated21.06.2011, along with the comments of the Detaining Authority. It hadbeen received by the COFEPOSA Unit of the Ministry of Finance, Departmentof Revenue, New Delhi, on 24.06.2011. COFEPOSA Section submitted the filealong with the relevant files and the documents, to the Deputy Secretary(COFEPOSA), on 24.06.2011. On examination of the representation, alongwith the relevant records, the Deputy Secretary (COFEPOSA), found thatthe information furnished by the Detaining Authority and the SponsoringAuthority were incomplete. Therefore, a letter, dated 28.06.2011, hadbeen sent to the Detaining Authority and the Sponsoring Authority tofurnish additional information. The information of the DetainingAuthority had been received in the (COFEPOSA) Unit of Ministry ofFinance, Department of Revenue, New Delhi, on 06.07.2011. The informationfrom the sponsoring authority had been received by the said unit, on11.07.2011. Thereafter, the COFEPOSA Section submitted the file, alongwith all the relevant files and documents, to the Deputy Secretary(COFEPOSA), on 11.07.2011, for examination. After conducting a detailedexamination of the issues raised in the representation and based on thecomments of the sponsoring authority, as well as the detaining authority,the Deputy Secretary (COFEPOSA), had submitted a file to the AdditionalSecretary (COFEPOSA), on 18.07.2011, with a comprehensive note.Thereafter, the said file had been submitted to the Special Secretary andDirector General, Central Economic Intelligence Bureau, New Delhi, on19.07.2011. The request made on behalf of the detenu, vide hisrepresentation, dated 10.06.2011, had been rejected by the CentralGovernment, on 19.07.2011, as it was devoid of merits. Thereafter, thedetenu had been intimated about the rejection of the representation,dated 10.06.2011, vide memorandum, dated, 19.07.2011.14.In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondents, and ona perusal of the records available and in view of the decisions citedsupra, this Court is of the considered view that the impugned detentionorder, dated 28.05.2011, passed by the first respondent, is liable to beset aside, as there has been an inordinate delay in the disposal of therepresentation, dated 10.06.2011, made on behalf of the detenu. https://hcservices.ecourts.gov.in/hcservices/

715.The representation, dated 10.06.2011, had been disposed of bythe Central Government, on 19.07.2011 and the order of rejection had beencommunicated to the detenu, on 19.07.2011. From the records available, itis also seen that the complete information from the sponsoring authorityhad been received in the COFEPOSA Unit of the Ministry of Finance,Department of Revenue, New Delhi, on 11.07.2011. Thereafter, therepresentation, dated 10.06.2011, had been rejected by the CentralGovernment, only on 19.07.2011. As such, there has been an actual andinordinate delay in the disposal of the representation made on behalf ofthe detenu by the Central Government. 16. In a number of decisions, the Apex Court, as well as the 16. HighCourts, have made it clear that the delay in disposing of therepresentation would vitiate the order of detention. Some of them are asfollows:1. BINOD SINGH Vs. DISTRICT MAGISTRATE, DHANBAD (AIR 1986 SC2090) 2. RIVADENEYTA RICARDO AGUSTIN Vs. GOVERNMENT OF DELHI (1994SCC (Cri) 354)3. RAJAMMAL Vs. STATE OF TAMIL NADU AND ANOTHER (1999 SCC (Cri) 93)4. SENTHIL KUMAR Vs. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR (2008(2) MLJ (Crl.) 1071)5. JAKKULIN Vs. STATE OF TAMIL NADU (2008 (2) MLJ (Crl.) 1571)6. STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT, HOME,PROHIBITION AND EXCISE (IX) DEPARTMENT, SECRETARIAT, CHENNAI ANDANOTHER (2009(1) MWN (Cr.) 400 (DB) 16.1. In the decision, in Prabhu Dayal Deorah Vs. DistrictMagistrate, Kamrup and others, (AIR 1974 SC 183), the Supreme Court hasheld that the constitutional requirement of Article 22(5) will not besatisfied, unless the detenu is given the earliest opportunity to make arepresentation against the detention. Thus, it is clear that the Statehas a concomitant and corresponding duty to dispose of therepresentation, without any delay. Therefore, the Supreme Court hasrepeatedly held that the State government is bound to consider therepresentation made on behalf of the detenu, at the earliest possible, asit is a mandatory obligation cast on it, by Clause (5) of Article 22 ofthe Constitution of India.16.2. In Ramamurthy Vs. The State of Tamil Nadu (2006(4) CTC 181), thisCourt had set aside the order of detention on the ground of delay inconsidering the representation made on behalf of the detenu. 16.3. In a decision of the Constitution Bench of the Supreme Court,in Jayanarayan Sukul Vs. State of West Bengal, (1970(1) SCC 219), it hasbeen held as follows:- “The reason for immediate consideration of the representation istoo obvious to be stressed. The personal liberty of a person is atstake. Any delay would not only be an irresponsible act on the part ofthe appropriate authority but also unconstitutional because theConstitution enshrines the fundamental right of a detenu to have hisrepresentation considered and it is imperative that when the liberty https://hcservices.ecourts.gov.in/hcservices/ 8of a person is in peril, immediate action should be taken by therelevant authorities.” 16.4. The Supreme Court, in Mahesh Kumar Chauhan alias Banti Vs.Union of India & Others, (1990) 3 SCC 148), while dealing with a case ofpreventive detention, has observed as under: “Except merely mentioning that the representation was forwardedto the concerned sponsoring authority on August 25, 1989 and thecomments from the sponsoring authority was received by the Departmenton September 11, 1989, there is absolutely no explanation as to whysuch a delay had occurred. This undue and unexplained delay is inviolation of Article 22(5) rendering the detention order invalid.” 16.5. In RAMA DHONDU BORADE VS. V.K.SARAF, COMMISSIONER OF POLICE(1989) 3 SCC 173), the Supreme Court has observed as follows: “A representation of a detenu whose liberty is in peril shouldbe considered and disposed of as expeditiously as possible; otherwise,the continued detention will render itself impermissible and invalidas being violative of Article 22(5). If any delay occurs in thedisposal of a representation, such delay should be explained by theappropriate authority to the satisfaction of the Court. In case theappropriate authority is unable to explain personally the delay atvarious stages, then it will be desirable - indeed appropriate - forthe concerned authority or authorities at whose hands the delay hasoccurred to individually explain such delay. In absence of anyexplanation, Court cannot wink at or skip over or ignore such aninfringement of the constitutional mandate and uphold an order ofdetention merely on the ground that the enormity of allegations madein the grounds of detention is of a very serious nature as in thepresent case” 16.6. In the decision, in Venkatesan @ Maya Venkatesan (2007(1)MLJ (Crl.) 1176), it has been held as follows: “10..... thus it is clear that the Government is bound toexplain the delay, if any, in disposing of the representation. It isnot enough to say that the delay was very short. The test is not theduration or range of delay, but how it is explained by the Authorityconcerned. In this case, as pointed out above, there is absolutely noexplanation for the delay of four days. It is a constitutionalobligation to consider the representation forwarded by the detenuwithout any delay, when the liberty of a citizen guaranteed underArticle 21 of the Constitution is involved. Hence, on this ground alsothe order of detention is liable to be quashed.” 16.7. In the decision, in Sumaiya Vs. The Secretary to Government,Prohibition and Excise Department, Government of Tamilnadu, Fort St.George, Chennai-9 and another [2007(2) MWN (Cr.) 145 (DB)], this Courthad held that an unexplained delay of three days in the disposal of therepresentation, made on behalf of the detenu, would be sufficient to setaside the detention order. 16.8. In Kalaiselvi.G. Vs. The State of Tamil Nadu (2007(5) CTC 657),a Full Bench of this Court had held as follows: “26.The last contention is relating to delay in disposal of therepresentation. It is by now well recognised that the authoritiesconcerned are duty bound to afford to the detenu an opportunity of https://hcservices.ecourts.gov.in/hcservices/ 9making representation and such right of the detenu obviouslyencompasses the corresponding duty that the representation mustreceive careful and expeditious attention and should be disposed ofwithout any unnecessary delay and the result of such representationshould also be communicated without unnecessary delay. This positionis apparent from several decisions of the Supreme Court, including thedecision Usha Agarwal vs. Union of India and others (2007 (1) SCC295), wherein, after referring to the Constitution Bench decision ofthe Supreme Court in Kamleshkumar Ishwandas Patel vs. Union of India,(1995) 4 SCC 51, it was observed: This Court has also repeatedly held that though there can be nospecific or mechanical test for determining whether there has beenundue delay, where there is an unexplained delay in either making theorder or serving the order, it would vitiate the order of detention.” 16.9. In Rekha Vs. State of Tamilnadu (2011(5) SCC 244), it has beenheld that the personal liberty of a person is protected, under Article 21of the Constitution of India. As it is so sacrosanct and so high in thescale of constitutional values, there is an obligation on the part of theDetaining Authority to show that, while passing the impugned order ofdetention, the procedures established by law have been meticulouslyfollowed. The procedural safe guards are required to be zealously watchedand enforced by the Courts of law and their rigour cannot be allowed tobe diluted on the basis of the nature of the alleged activities of thedetenu. 16.10. A dissenting note seems to have emerged from the decision ofthe Supreme Court, in D.M.Nagaraja Vs. The Government of Karnataka andothers (2011(2) TLNJ 361 (Criminal), wherein, it has been held that thereis no constitutional mandate, under Clause (5) of Article 22, much lessany statutory requirement, to consider the representation made on behalfof the detenu, before the order of detention is confirmed. However, it isneedless to point out that the correct position of law has beenenunciated by the Supreme Court, in its decision, in K.M.Abdulla KunhiVs. Union of India (1991(1) SCC 476), wherein, it had been held asfollows: “12........ The requirement however, is 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 andillegal.....” 16.11. In fact, this Court, in its order, dated 9.11.2011, inSmt.Sowdun Bivi Vs. The State of Tamilnadu (H.C.P.No.108 of 2011), hasclarified the position relating to the issue regarding the considerationof the representation made on behalf of the detenu, referring to the FullBench decision of this Court, in Rajammal Vs. State of Tamil Nadu andanother (1999 AIR SCW 139). Thus, it is clear from the catena of casesdecided by the Supreme Court that there is an obligation cast on theDetaining Authority, as well as the State Government, to consider therepresentation made on behalf of the detenu, as early as possible, as perthe mandate enshrined in Clause (5) of Article 22 of the Constitution of https://hcservices.ecourts.gov.in/hcservices/ 10India. 16.12. In Rashid sk. v. State of West Bengal reported in, 1973 (3)SCC 476, the Supreme Court has held as follows: “The ultimate objective of this provision can only be the mostspeedy consideration of his representation by the authoritiesconcerned, for, without its expeditious consideration with a sense ofurgency the basic purpose of affording earliest opportunity of makingthe representation is likely to be defeated.This right to represent and to have the representation considered atthe earliest flows from the constitutional guarantee of the right topersonal liberty – the right which is highly cherished in our Republicand its protection against arbitrary and unlawful invasion.” 16.13. In Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65, theSupreme Court has held thus;-“...the right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal not onlyby the State Government under the relevant provision of the Statute,but also by the Central Government. But in each case it is one of factto be ascertained whether the Central Government or State Government,as the case may be, has caused delay due to negligence, callousinaction, avoidable re-tapism and undue protraction by the authoritiesconcerned. Expedition is the rule and delay defeats mandate of Article22(5) of the Constitution of India.” 16.14. In Aslam Ahmed Zahire Ahmed Shaik v. union of India andothers, reported in 1989 SCC (Crl) 554, the Supreme Court has held asfollows:- “The supine indifference, slackness and callous attitude on thepart of the Jail Superintendent who had unreasonably delayed intransmitting the representation as an intermediary, had ultimatelycaused undue delay in the disposal of the appellant's representationby the government which received the representation 11 days after itwas handed over to the jail Superintendent by the detenu. Thisavoidable and unexplained delay has resulted in rendering thecontinued detention of the appellant illegal and constitutionallyimpermissible........ When it is emphasised and re-emphasised by a series of decisionsof the Supreme Court that a representation should be considered withreasonable expedition, it is imperative on the part of everyauthority, whether in merely transmitting or dealing with it, todischarge that obligation with all reasonable promptness and diligencewithout giving room for any complaint of remissness, indifference oravoidable delay because the delay, caused by slackness on the part ofany authority, will ultimately result in the delay of the disposal ofthe representation which in turn may invalidate the order of detentionas having infringed the mandate of Article 22(5).” 16.15. In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 andRaghavendra Singh v. Superintendent, District Jail, (1986) 1 SCC 650, theApex Court has held that any inordinate and unexplained delay on the partof the Government, in considering the representation, renders the https://hcservices.ecourts.gov.in/hcservices/ 11detention illegal. 16.16. In Rajammal v. State of Tamil Nadu, 1999 (1) SCC 417, ithas been held as follows:- "It is a constitutional obligation of the Government to considerthe representation forwarded by the detenu without any delay. Thoughno period is prescribed by Article 22 of the Constitution for thedecision to be taken on the representation, the words “as soon as maybe” in clause (5) of Article 22 convey the message that therepresentation should be considered and disposed of at the earliest. But that does not mean that the authority is preempted from explainingany delay which would have occasioned in the disposal of therepresentation. The Court can certainly consider whether the delay wasoccasioned due to the permissible reasons or unavoidable causes. If delay was caused on account of any indifference or lapse inconsidering the representation such delay will adversely affectfurther detention of the prisoner. In other words, it is for theauthority concerned to explain the delay, if any, in disposing of therepresentation. It is not enough to say that the delay was veryshort. Even longer delay can as well be explained. So the test isnot the duration or range of delay, but how it is explained by theauthority concerned. Even the reason that the Minister was on tourand hence there was a delay of five days in disposing of therepresentation was rejected by the Apex Court holding that when theliberty of a citizen guaranteed under Article 21 of the Constitutionof India is involved, the absence of the Minister at head quarters isnot sufficient to justify the delay, since the file could be reachedthe Minister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen.” 16.17. In K.M.Abdulla Kunhi v. Union of India, (1991) 1 SCC 476, ithas been held as follows:- “That part, it is settled law that there should not be supineindifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal of therepresentation would be breach of the constitutional imperative and itwould render the continued detention impermissible andillegal.” 17.18. In a recent decision, in Ummu Sabeena Vs. State of Kerala,2011 STPL (Web) 999 SC, the Supreme Court has held that the history ofpersonal liberty, as is well known, is a history of insistence onprocedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India, clearly shows the concern of the makersof the Constitution that the representation, made on behalf of thedetenu, should be considered and disposed of with a sense of urgency andwithout any avoidable delay. https://hcservices.ecourts.gov.in/hcservices/

1218.In such circumstances, the impugned detention order passed bythe first respondent, dated 28.05.2011, is set aside and this HabeasCorpus petition is allowed. Consequently, the detenu is directed to beset at liberty, forthwith, unless his detention is required in connectionwith any other case or cause. Sd/-Assistant Registrar (Crl.Side)/True Copy/Sub Assistant Registrar(CS)To1.The Secretary to Government, The State of Tamil Nadu, Public(SC)Dept., Fort.St.George, Chennai-600 009. 2.The Secretary to the Government, The Union of India, Ministry of Finance, Department of Revenue, (COREPOSA-UNIT), New Delhi-1. 3.The Superintendent of Central Prison, Central Prison, Puzhal, Chennai.4.The Passport Officers, Regional Passport Office, Tiruchirapalli.5. The Joint Secretary to Government, Public (Law & Order), Fort Saint George, Chennai-96. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai+1cc to Mr.S.Kameswaran, Advocate, SR.No.43294+1cc to mr.B.Vijay Karthikeyan, Advocate, SR.No.43292ssm/amGH : 30.01.2012 : 12p/9cH.C.P.(MD)No.505 of 2011 Dated:- 12.12.2011