[CASE NUMBER] BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.09.2019 CORAM THE HON'BLE MR.JUSTICE [ENTITY] AND THE HON'BLE MR.JUSTICE [ENTITY] [CASE NUMBER] [ENTITY] Petitioner Vs. [ENTITY], represented by its Secretary to Government, Home, Prohibition, Excise Department, Fort St.George, Chennai 600 009. 2.The [ENTITY]. 3.The [ENTITY]. Respondents PRAYER: This Habeas Corpus Petition is filed under [SECTION]6 of the [ACT], praying for issuance of a Writ of Habeas Corpus, to call for the records relating to the Detention Order passed by the second respondent, in [CASE NUMBER], dated 20.03.2019 and quash the same and to direct the respondent to produce the body or person of the Detenu, namely, [ENTITY], S/o. [ENTITY], aged about 22 years (now detained at Central Prinson, Trichy). For Petitioner :Mr.[ENTITY] For Respondents : Mr.[ENTITY] Addl. Public Prosecutor http: www.judis.nic.in 1/8 [CASE NUMBER] ORDER
[ENTITY], J.
AND [ENTITY], J.
This Habeas Corpus Petition is directed against the detention order of the second respondent in [CASE NUMBER], dated 20.03.2019
2.The only ground that was raised by the learned counsel for the Petitioner is with regard to the delay in considering the representation made by the detenu.
3.The learned counsel for the Petitioner submitted that the representation was made on 04.06.2019 and it was received on 11.06.2019 by the concerned Department. The remarks were called for on the same day and it was received on 13.06.2019. Thereafter, the file was submitted to the Under Secretary on the same day. The Under Secretary had passed the file to the Deputy Secretary on 13.06.2019 and he forward the same to the concerned Minister on the same day. The representation was rejected on 05.07.2019 and it was communicated to the detenu on 08.07.2019. The learned counsel for the petitioner by pointing out the above chronology of events, submitted that there is an unexplained delay http: www.judis.nic.in of 6 days in considering the representation and the said delay has not been explained and therefore, the Detention Order is vitiated by the unexplained delay.
4.From the above chronology of events, it is seen that there is a delay of nearly 9 days while while the concerned Minster was considering the file after it was sent by the Deputy Secretary. Out of this 9 days, explanation was given only for 3 days, which happens to be Government holidays. For the balance 6 days, there is absolutely no explanation as to why there was a delay in considering the representation.
5.At this juncture, it will be relevant to rely upon the judgment cited by the learned counsel for the Petitioner in [PRECEDENT].
6.The relevant portions in the judgment is extracted hereunder:
7.It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by [SECTION] of the [ACT] for the decision to be taken on the http: www.judis.nic.in representation, the words as soon as may be in [SECTION] convey the message that the representation should be considered and disposed of at the earliest.But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a [ACT] Bench of this Court in [PRECEDENT].The following observations of the Bench can profitably be extracted here(SCC Page.484 para 12) It is a constitutional mandate commanding the authority concerned to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words 'as soon as may be occuring in [SECTION] reflects the concern of the Framers that the representaiton should be expeditiously considered and disposed of with a sense of urgency without any unavoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the [ACT] or under the detention law concerned, within which, the http: www.judis.nic.in representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained deay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal .
8.The position, therefore, now is that if delay was caused on account of any differences or lapse in considering the representation, such delay will adversely affect further detention of the prisoner.
In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation 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 the duration or range of delay, but how it is explained by the authority concerned.
7.It is clear from the above judgment that unexplained delay in disposing of the representation would be a breach of the statutory mandate and it would render the continued detention impermissible. The Judgment of the Honourable Supreme Court will squarely apply to the facts of the present case. There is absolutely no explanation with regard to the delay of 21 days http: www.judis.nic.in mentioned herein above and therefore, this Court finds that there has been a supine indifference and slackness in considering the representaiton which defeats the constitutional right granted to the detenu under [SECTION] of the [ACT].
8 In the result, the Habeas Corpus Petition is allowed and the order of detention in Detention Order in [CASE NUMBER], dated 20.03.2019, passed by the second respondent is set aside. The detenu, namely, [ENTITY], S/o. [ENTITY], Male, aged about 20 years, is directed to be released forthwith unless his detention is not required in connection with any other case.
[[ENTITY]] & [[ENTITY]] 20.09.2019 Index :Yes/No Internet :Yes/No cmr http: www.judis.nic.in To 1.The [ENTITY],
Home, Prohibition, Excise Department, Fort St.George, Chennai 600 009.
2.The [ENTITY].
3.The [ENTITY].
4.The [ENTITY].
http: www.judis.nic.in [ENTITY], J.
AND [ENTITY], J.
cmr ORDER MADE IN 20.09.2019 http: www.judis.nic.in