Ponnuthai v. The State of Tamil Nadu

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 22.12.2011CORAM:THE HONOURABLE MR.JUSTICE.M.JAICHANDRENANDTHE HONOURABLE MR.JUSTICE.S.NAGAMUTHUH.C.P.(MD)No.668 of 2011Ponnuthai: 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, Trichirapalli.: 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.1/367-5/2011, dated12.07.2011, passed by the first respondent herein and quash the same anddirect the respondent to produce the body of the person of the detenu,namely, Muthaiah Asaithambi, aged about 35 years, son of Muthaiah, beforethis Court, now detained under Section 3(1)(i) of the COFEPOSA Act in theCentral Prison, Trichirapalli, and set him at liberty forthwith.For Petitioner: Mr.S.PalanikumarFor Respondents: Mr.C.Ramesh1 & 3 Additional Public Prosecutor For 2nd Respondent : Mr.R.AravindanO 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, dated12.07.2011, in G.O.No.S.R.1/367-5/2011, and quash the same and direct therespondents to produce the detenu, namely, Muthaiah Asaithambi, agedabout 35 years, detained under Section 3(1)(i) of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, 1974, https://hcservices.ecourts.gov.in/hcservices/ 2(Central Act 52 of 1974), in the Central Prison, Tiruchirapalli, beforethis Court 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 12.07.2011, 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 Muthaiah Asaithambi, the husband of the petitioner, in theCentral Prison, Tiruchirapalli.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 25.05.2011. 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 600 grams of goldfrom him and it had been assessed at Rs.13,50,600.00. The Officers hadalso prepared a seizure mahazar. Thereafter, the detenu had beenarrested, on 25.05.2011, on the allegation that he had contravened theprovisions 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 12.07.2011, is liable to be set aside,merely on the ground of delay in the disposal of the representation,dated 03.08.2011, 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, dated03.08.2011, had been sent on behalf of the detenu, to the StateGovernment, as well as to the Central Government. However, there hasbeen an undue delay in disposing of the said representation, as it hadbeen rejected by the State Government and the Central Government only, on08.09.2011 and 19.09.2011, 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 detentionorder passed by the first respondent, on 12.07.2011, is liable to be setaside.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, on12.07.2011, is valid, as it has been passed in accordance with the https://hcservices.ecourts.gov.in/hcservices/ 3procedures 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:-“2.1 With regard to the averments referred to in Para-14 ofthe Petition insofar these relate to the Respondent No. 2 i.e.Union of India, it is respectfully submitted that as per recordsmaintained in the COFEPOSA Unit of the Department of Revenue,New Delhi, a copy of the purported representation dated03.08.2011 in Tamil language in respect of Thiru MuthaiahAsaithambi, COFEPOSA Detenu was received in the COFEPOSA Unit ofthe Ministry of Finance, Department of Revenue, New Delhi on12.08.2011 from the Public (Law & Order) Department, Governmentof Tamil Nadu, Chennai, as forwarded vide their letter dated09.08.2011. Parawise comments on the representation alongwiththe English translation thereof were called for from theSponsoring Authority, viz. the Commissioner of Customs (COFEPOSA- Air), Chennai as well as the Detaining Authority viz. Public(Law & Order) Department, Government of Tamil Nadu, Chennai on12.08.2011. The comments of the Sponsoring Authority on therepresentation alongwith the English translation of the same andother relevant information, sent vide letter dated 16.08.2011,were received in the COFEPOSA Unit of Ministry of Finance,Department of Revenue, New Delhi on 18.08.2011. The comments ofthe Detaining Authority on the representation, sent vide letterdated 17.08.2011, were received in the COFEPOSA Unit of Ministryof Finance, Department of Revenue, New Delhi on 07.09.2011.Further information were again called for from the SponsoringAuthority which was received in the COFEPOSA Unit of theMinistry on 15.09.2011. COFEPOSA Section submitted the filealongwith all the relevant files & documents to the DeputySecretary (COFEPOSA) on 15.09.2011 itself for examination. Afterconducting detailed examination of the issues raised in therepresentation and the comments of the Sponsoring Authority andDetaining Authority thereon, the Deputy Secretary (COFEPOSA)submitted the file with a comprehensive note to the JointSecretary (Cofeposa) on 16.09.2011. Joint Secretary (Cofeposa),in turn, submitted the file to the Special Secretary & DirectorGeneral, Central Economic Intelligence Bureau, New Delhi on16.09.2011. The said representation was considered by theSpecial 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 19.09 being devoid of merit. The file wasreceived back in the COFEPOSA Unit on 19.09.2011. The detenu wasintimated about the rejection of the representation dated03.08.2011, vide memorandum dated 19.09.2011.”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 03.08.2011, had been received in theCOFEPOSA Unit of the Ministry of Finance, Department of Revenue, NewDelhi, on 12.08.2011, from the Public (Law & Order) Department, https://hcservices.ecourts.gov.in/hcservices/ 4Government of Tamil Nadu, Chennai. Parawise comments on therepresentation, along with english translation thereof, were called forfrom the sponsoring authority, namely, the Commissioner of Customs(COFEPOSA-Air), Chennai, as well as the detaining authority, namely,Public (Law and Order), Department, Government of Tamil Nadu, Chennai, on12.08.2011. The comments of the sponsoring authority, along with theenglish translation of the same had been received in the COFEPOSA Unit ofthe Ministry of Finance, Department of Revenue, New Delhi, on 18.08.2011. 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 15.09.2011. 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 theJoint Secretary (COFEPOSA), on 16.09.2011. The Joint Secretary(COFEPOSA), had submitted the file to the Special Secretary and DirectorGeneral, Central Economic Intelligence Bureau, New Delhi, on 16.09.2011.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 19.09.2011,stating that the said representation is devoid of merits. Thereafter,the detenu had been intimated about the rejection of the representation,dated 19.09.2011, vide memorandum, dated 19.09.2011.11.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:-“4.As far as the averments made in paragraphs 3 and 4 of theaffidavit in H.C.M.P.No.1 of 2011 in H.C.P.No.668 of 2011 areconcerned, it is submitted that all the relied upon documents,received from the sponsoring authority till the date of passing ofthe detention order, have been furnished to the detenu underproper acknowledgement. It is further submitted that filing of anapplication for compounding of offence, adjudication proceedings,issue of show cause notice under the Customs Act, 1962 (CentralAct 52 of 1962) are different from the action initiated under theCOFEPOSA Act, 1974 (Central Act 52 of 1974). The action initiatedunder the Customs Act, 1962 (Central Act 52 of 1962), cannot haveany bearing on the issue of detention order against the detenuunder the COFEPOSA Act, 1974 (Central Act 52 of 1974). Thedetention order was passed after thorough scrutiny of the materialplaced before the detaining authority. Hence, the.question ofconsidering the criminal and adjudication proceedings by thedetaining authority, does not arise. Regarding placing of showcause notice and reply to the show cause notice before the StateAdvisory Board and the Confirming Authority, it is submitted thatthe show cause notice and reply to the show cause notice have notbeen received in this Department. Hence, the question of placing https://hcservices.ecourts.gov.in/hcservices/ 5the same before the State Advisory Board and the ConfirmingAuthority does not arise.It is further submitted that the representation dated 21-09-2011,presented by the detenu in person before the State Advisory Board(COFEPOSA) at the time of personal hearing on 21-09-2011, was received bythe Government through the Sub-Assistant Registrar, State Advisory Board(COFEPOSA), High Court, Chennai on 27-09-2011 and it was disposed on11-10-2011 as follows:-Representation dated 21-09-2011, presented by the detenuin person before the StateAdvisory Board (COFEPOSA) atthe time of personal hearingon 21-09-2011, was receivedby the Government through theSub-Assistant Registrar,State Advisory Board(COFEPOSA), High Court,Chennai on : 27-09-2011Parawar remarks called for from theCustoms Department, Chennai on: 28-09-2011Remarks received from the CustomsDepartment, Chennai on: 30-09-2011File sent to the Public (SC) Department on: 30-09-2011Saturday: 01-10-2011Sunday: 02-10-2011File returned fromthe Public (SC) Department on: 03-10-2011Circulation note was put up on: 03-10-2011Under Secretary to Government, Public (Law & Order) Department,considered the representation on: 03-10-2011Additional Secretary to Government,Public (Law & Order) Department considered the representation on : 04-10-2011Secretary to Government,Public Department,considered the representation on: 04-10-2011Secretary to Government,Law Department,considered the representation on : 04-10-2011 https://hcservices.ecourts.gov.in/hcservices/ 6Saraswathi Pooja (Holiday): 05.10.2011Vijayadhasamy (Holiday): 06.10.2011Chief Secretary to Government considered the representation on: 07.10.2011Honourable Minister for Law considered andrejected the representation on: 08-10-2011 Saturday : 08-10-2011 Sunday : 09-10-2011Hon'ble Chief Ministerconsidered and rejected the representation on : 11.10.2011Reply sent to the detenu on : 11.10.2011Detenu Received the letter underacknowledgment on : 12.10.2011The representation was received on 27-09-2011 and it was disposed of on11-10-2011. In between 27-09-2011 and 11-10-2011, there were fifteendays. Out of these fifteen days, there were six Government holidays.Excluding these holidays, the representation was continuously andcarefully considered and disposed of within nine days and there was noundue and unexplained delay in considering the representation.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, on03.08.2011, as stated in paragraph 14 of the counter affidavit. 13.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 12.07.2011, passed by the first respondent, is liable to beset aside, as there has been an inordinate delay in the disposal of therepresentation, dated 03.08.2011, made on behalf of the detenu. 14.The representation, dated 03.08.2011, had been disposed of bythe Central Government, on 19.09.2011 and the order of rejection had beencommunicated to the detenu, on 19.09.2011. From the records available,it is also seen that the complete information from the sponsoringauthority had been received in the COFEPOSA Unit of the Ministry ofFinance, Department of Revenue, New Delhi, on 15.09.2011. Thereafter, therepresentation, dated 03.08.2011, had been rejected by the CentralGovernment only on 19.09.2011. As such, there has been an inordinatedelay in the disposal of the representation, made on behalf of thedetenu, by the Central Government. 15. In a number of decisions, the Apex Court, as well as the variousHigh Courts, have made it clear that the delay in disposing of therepresentation would vitiate the order of detention. Some of them are as https://hcservices.ecourts.gov.in/hcservices/ 7follows:1. BINOD SINGH Vs. DISTRICT MAGISTRATE, DHANBAD (AIR 1986 SC 2090) 2. RIVADENEYTA RICARDO AGUSTIN Vs. GOVERNMENT OF DELHI (1994 SCC(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, 15., CHENNAI AND ANOTHER (2009(1)MWN (Cr.) 400 (DB) 15.1. 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.15.2. 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. 15.3. In a decision of the Constitution Bench of the Supreme Court, inJayanarayan Sukul Vs. State of West Bengal, (1970(1) SCC 219), it hasbeen held as follows:- “The reason for immediate consideration of therepresentation is too obvious to be stressed. The personalliberty of a person is at stake. Any delay would not only be anirresponsible act on the part of the appropriate authority butalso unconstitutional because the Constitution enshrines thefundamental right of a detenu to have his representationconsidered and it is imperative that when the liberty of aperson is in peril, immediate action should be taken by therelevant authorities.” 15.4. 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 wasforwarded to the concerned sponsoring authority on August 25,1989 and the comments from the sponsoring authority was receivedby the Department on September 11, 1989, there is absolutely noexplanation as to why such a delay had occurred. This undue andunexplained delay is in violation of Article 22(5) rendering thedetention order invalid.” 15.5. In RAMA DHONDU BORADE VS. V.K.SARAF, COMMISSIONER OF POLICE(1989) 3 SCC 173), the Supreme Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ 8 “A representation of a detenu whose liberty is in perilshould be considered and disposed of as expeditiously as possible;otherwise, the continued detention will render itselfimpermissible and invalid as being violative of Article 22(5). Ifany delay occurs in the disposal of a representation, such delayshould be explained by the appropriate authority to thesatisfaction of the Court. In case the appropriate authority isunable to explain personally the delay at various stages, then itwill be desirable - indeed appropriate - for the concernedauthority or authorities at whose hands the delay has occurred toindividually explain such delay. In absence of any explanation,Court cannot wink at or skip over or ignore such an infringementof the constitutional mandate and uphold an order of detentionmerely on the ground that the enormity of allegations made in thegrounds of detention is of a very serious nature as in the presentcase” 15.6. 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 is not enough to say that the delay was very short. The testis not the duration or range of delay, but how it is explainedby the Authority concerned. In this case, as pointed out above,there is absolutely no explanation for the delay of four days.It is a constitutional obligation to consider the representationforwarded by the detenu without any delay, when the liberty of acitizen guaranteed under Article 21 of the Constitution isinvolved. Hence, on this ground also the order of detention isliable to be quashed.” 15.7. 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. 15.8. In Kalaiselvi.G. Vs. The State of Tamil Nadu (2007(5) CTC657), a Full Bench of this Court had held as follows: “26.The last contention is relating to delay in disposal ofthe representation. It is by now well recognised that theauthorities concerned are duty bound to afford to the detenu anopportunity of making representation and such right of the detenuobviously encompasses the corresponding duty that therepresentation must receive careful and expeditious attention andshould be disposed of without any unnecessary delay and theresult of such representation should also be communicated withoutunnecessary delay. This position is apparent from severaldecisions of the Supreme Court, including the decision UshaAgarwal vs. Union of India and others (2007 (1) SCC 295),wherein, after referring to the Constitution Bench decision ofthe Supreme Court in Kamleshkumar Ishwandas Patel vs. Union of https://hcservices.ecourts.gov.in/hcservices/ 9India, (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 hasbeen undue delay, where there is an unexplained delay in eithermaking the order or serving the order, it would vitiate the orderof detention.” 15.9. 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. 15.10. 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 shouldnot be supine indifference slackness or callous attitude inconsidering the representation. Any unexplained delay in thedisposal of representation would be a breach of theconstitutional imperative and it would render the continueddetention impermissible and illegal.....” 15.11. 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 ofIndia. 15.12. 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 authorities concerned,for, without its expeditious consideration with a sense of urgency thebasic purpose of affording earliest opportunity of making therepresentation is likely to be defeated. This right to represent and to https://hcservices.ecourts.gov.in/hcservices/ 10have the representation considered at the earliest flows from theconstitutional guarantee of the right to personal liberty – the rightwhich is highly cherished in our Republic and its protection againstarbitrary and unlawful invasion.” 15.13. 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 notonly by the State Government under the relevant provision of theStatute, but also by the Central Government. But in each case itis one of fact to be ascertained whether the Central Governmentor State Government, as the case may be, has caused delay due tonegligence, callous inaction, avoidable re-tapism and undueprotraction by the authorities concerned. Expedition is the ruleand delay defeats mandate of Article 22(5) of the Constitution ofIndia.” 15.14. 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 onthe part of the Jail Superintendent who had unreasonably delayed intransmitting the representation as an intermediary, had ultimatelycaused undue delay in the disposal of the appellant'srepresentation by the government which received the representation11 days after it was handed over to the jail Superintendent by thedetenu. This avoidable and unexplained delay has resulted inrendering the continued detention of the appellant illegal andconstitutionally impermissible........ When it is emphasised and re-emphasised by a series ofdecisions of the Supreme Court that a representation should beconsidered with reasonable expedition, it is imperative on the partof every authority, whether in merely transmitting or dealing withit, to discharge that obligation with all reasonable promptness anddiligence without giving room for any complaint of remissness,indifference or avoidable delay because the delay, caused byslackness on the part of any authority, will ultimately result inthe delay of the disposal of the representation which in turn mayinvalidate the order of detention as having infringed the mandateof Article 22(5).” 15.15. 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 thedetention illegal. 15.16. In Rajammal v. State of Tamil Nadu, 1999 (1) SCC 417, ithas been held as follows:- "It is a constitutional obligation of the Government toconsider the representation forwarded by the detenu without any https://hcservices.ecourts.gov.in/hcservices/ 11delay. 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 preempted from explaining any delay which would haveoccasioned in the disposal of the representation. The Court cancertainly consider whether the delay was occasioned due to thepermissible 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 ofthe representation. 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 quartersis not sufficient to justify the delay, since the file could bereached the Minister with utmost promptitude in cases involving thevitally important fundamental right of a citizen.” 15.17. 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 andit would render the continued detention impermissible andillegal.” 15.18. 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.16.In such circumstances, the impugned detention order passed bythe first respondent, dated 12.07.2011, 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. ssmSd/-Assistant Registrar[AS]/True copy/Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 12To1.THE SECRETARY TO GOVERNMENT, PUBLIC(SC)DEPARMENT, FORT.ST.GEORGE, CHENNAI-600 009. 2.THE SECRETARY TO THE GOVERNMENT, THE UNION OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, (COFEPOSA-UNIT), NEW DELHI. 3.THE SUPERINTENDENT OF CENTRAL PRISON, TRICHIRAPALLI.4.THE JOINT SECRETARY TO GOVERNMENT, PUBLIC[LAW & ORDER] FORT ST. GEORGE, CHENNAI-9.5.THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC TO M/S.S.KAMESWARAN, ADVOCATE SR.NO.45460. +1 CC TO M/S.R.ARAVINDAN, ADVOCATE SR.NO.727.H.C.P.(MD)No.668 of 2011Dated:22.12.201112P/8CRPB : 30.01.2012