IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.12.2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1319 of 2007 G.Sumathi .. Petitioner Vs. 1. The Secretary to Government Home, Prohibition & Excise Department Fort St.George, Chennai-9. 2. The District Collector and District Magistrate Villupuram District Villupuram. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Mr.K.Gandhikumar For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R (Order of the Court was made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu, son of the petitioner, as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda and he has to be detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). 2.1. The order of detention dated 29.5.2007 was passed on the basis of ground case that occurred on 30.4.2007 at about 10.00 a.m. It is stated that on the said day, when one Saravanan and his friends were having tea, the detenu came there, started wordy altercation with Saravanan and demanded money. When Saravanan refused, the detenu took Veecharuval and https://hcservices.ecourts.gov.in/hcservices/ threatened to kill him. When Saravanan further refused to give money, the detenu attacked him with Veecharuval on his neck and right leg and caused serious injury and snatched Rs.650/- from Saravanan. When friends of Saravanan intervened, the detenu picked up soda bottles and hurled the same against the public. The public who were at the spot noticing the atrocious activities ran for safer places out of fear of danger to their lives and properties. On the same day, the detenu was arrested in connection with three cases in Crime Nos.251, 323 and 335 of 2007 on the file of Villupuram Town Police Station. 2.2. The detaining authority also took not of three adverse cases pending against the detenu, viz., Crime Nos.520 of 2006, 251 and 323 of 2007 all on the file of Villupuram Town Police Station for the offences punishable under Sections 147, 148, 294(b), 341, 323, 324, 506(ii) and 307 IPC read with Section 3 of the Explosive Substances Act, 1908. 2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order, passed the impugned order. 3. Challenging the said detention, the mother of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records in C2/22763/2007, dated 29.5.2007 on the file of the second respondent herein, to quash the same as illegal and to consequently direct the respondents to produce the detenu, now confined in Central Prison, Cuddalore, before this Court 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 the petitioner is that there is considerable delay in considering the representation and the same has rendered the detention illegal. 6.1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point. 6.2. Article 22(5) of the Constitution of India suggests that the obligation of the government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according 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 the Constitution of India includes right to expeditious disposal by the State Government. 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 the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650. 6.5. 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 Article 22 of the Constitution for the decision to be taken on the representation, the words “as soon as may be” in clause (5) of Article 22 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. If delay was caused on account of any indifference 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. Even the reason that the Minister was on tour and hence there was a delay of five days in disposing of the representation was rejected by the Apex Court holding that when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved, the absence of the Minister at head quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417. 7. In the instant case, the impugned order of detention came to be passed on 29.5.2007. A representation was made to the Government on 23.8.2007 and the same was received by it 28.8.2007. Remarks were called for from the detaining authority on 29.8.2007 and the same was received by the detaining authority on 7.9.2007. Parawar remarks were called for from the sponsoring authority on 9.9.2007. But, parawar remarks of the sponsoring authority were received by the detaining authority only on 21.9.2007, viz., after a delay of nine days, excluding three public holidays. The delay, as indicated above, was highlighted by the learned counsel for the petitioner. There is no convincing reply on behalf of the State for the said delay. We find some force as well as substance in this contention. There is absolutely no explanation for this delay. 8. At this juncture, a reference to the decision of the Apex Court in Kundanbhai Dulabhai Sheikh v District Magistrate, Ahmedabad, (1996) 3 SCC 194 is apposite: https://hcservices.ecourts.gov.in/hcservices/ "In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the ‘liberty and freedom’ to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest.” 9. That apart, it is a settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 . The delay which stands unexplained is fatal to the detention order attracting Article 22 of the Constitution of India and therefore,the petition must succeed and the same is ordered as prayed for. The detention order dated 29.5.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Secretary to Government State of Tamilnadu Home, Prohibition and Excise Department Fort St.George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Collector and District Magistrate Villupuram District Villupuram. 3. The Public Prosecutor High Court, Madras. 4. The Superintendent, Central Prison, Cuddalore. 5. The Joint Secretary to Govt., Public (Law & Order) Dept., Fort St. George, Chennai-9. RA(CO) RP 12.12.2007. H.C.P.No.1319 of 2007 https://hcservices.ecourts.gov.in/hcservices/