1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.09.2019 CORAM THE HON'BLE MR.JUSTICE [ENTITY] AND THE HON'BLE MR.JUSTICE [ENTITY] [CASE NUMBER] [ENTITY] Petitioner Vs. 1.The State of Tamil Nadu represented by Additional Principal Secretary to Government, The State of Tamil Nadu, Home, Prohibition and Excise(XVI) Department, Fort St.George, Chennai 600 009. 2.The [ENTITY]. 3.The [ENTITY]. Respondents PRAYER: This Habeas Corpus Petition is filed under [SECTION] of the [ACT], praying for issuance of a Writ of Habeas Corpus,calling for the entire records connected with the detention order of the respondent No.2 in [CASE NUMBER] dated 16.03.2019 and quash the same as illegal and direct the respondents to produce the body or person of petitioner's son / detenu by name [ENTITY] S/o.[ENTITY] aged 26 years, residing at Harijana Street, Palur, Koothur Post, Manachanallur Taluk, Trichy District was detained as a 'Boot Legger' at Trichirappalli Central Prison before this Court and set him at liberty forthwith. http: www.judis.nic.in 2 For Petitioner : Mr.[ENTITY] For Respondents : Mr.[ENTITY] Addl. Public Prosecutor ORDER
[ENTITY], J.
[ENTITY], J.
This Habeas Corpus Petition is directed against the detention order of the second respondent in [CASE NUMBER], dated 16.03.2019.
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 02.04.2019 and it was received on 04.04.2019 by the concerned Department. The remarks were called for on 05.04.2019 and it was received on 23.04.2019 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 25.04.2019 and he kept the file till 30.04.2019 for nearly 18 days. The representation was rejected on 02.05.2019 http: www.judis.nic.in and it was communicated to the detenu on 07.05.2019. The learned counsel for the Petitioner by pointing out the above chronology of events, submitted that there is an unexplained delay of 9 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 18 days while the Deputy Secretary was considering the file after it was sent by the Under Secretary. Out of this 18 days, explanation was given only for 9 days which happens to be Government holidays. For the balance 9 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]. 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 http: www.judis.nic.in no period is prescribed by [SECTION] of the [ACT] for the decision to be taken on the 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 http: www.judis.nic.in under the [ACT] or under the detention law concerned, within which, the 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 http: www.judis.nic.in will squarely apply to the facts of the present case. There is absolutely no explanation with regard to the delay of 9 days 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 [CASE NUMBER], dated 16.03.2019, passed by the second respondent is set aside. The detenu, namely, [ENTITY], son of [ENTITY], aged about 26 years, is directed to be released forthwith unless his detention is not required in connection with any other case.
[[ENTITY]] & [[ENTITY]] 19.09.2019 Index:Yes/No Internet:Yes/No gns http: www.judis.nic.in To
1.The Additional Principal Secretary to Government, The State of Tamil Nadu, Home, Prohibition and Excise(XVI) Department, Fort St.George, Chennai 600 009.
2.The [ENTITY].
3.The [ENTITY].
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http: www.judis.nic.in [ENTITY], J.
[ENTITY], J.
gns 19.09.2019 http: www.judis.nic.in