1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.04.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI Habeas Corpus Petition (MD) No.7 of 2011 Marimuthu, S/o.Kadarkarai ... Petitioner vs. 1.The State of Tamil Nadu, rep.by its Secretary, Home, Prohibition and Excise Department, Fort St.George, Chennai-9. 2.The District Magistrate and District Collector, Virudhunagar District. 3.The Superintendent of Prison, Madurai Central Prison,Madurai. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India 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 Cr.M.P.No.44/2010, dated 03.12.2010, quashing the same and consequently setting the petitioner's son by name Muthukumar @ Kadu, aged about 23 years, detained in Madurai Central Prison, at liberty. For Petitioner : Mr.R.Alagumani For Respondents : Mr.M.Daniel Manoharan, Addl.Public Prosecutor. ORDER (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner, who is the father of the detenu, has filed this petition challenging the order of detention, dated 03.12.2010, passed by the 2nd respondent under the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, branding the petitioner's son as a "Goonda" and directing him to be detained at the Central Prison, Madurai. 2.Learned counsel appearing for the petitioner submitted that though many grounds have been raised in the petition, the petition is confined to the only ground of delay in considering the representation made by the detenu, dated 20.12.2010, received by the Government on 28.12.2010, which, according to the petitioner, vitiates the detention order. Learned counsel for the petitioner submitted that there is delay at two stages, namely (i) five days delay in furnishing remarks and (ii) https://hcservices.ecourts.gov.in/hcservices/ 2 three days delay in preparing the rejection letter. Learned counsel submitted that the delay occurred in consideration and disposal of the representation vitiates the order of detention. 3.Learned Additional Public Prosecutor submitted that there were two holidays in between the date of calling for remarks and the remarks reaching the Government and hence there is no delay in furnishing the remarks. He wold further add that the three days delay in preparing the rejection letter is not an inexcusable delay. Therefore, according to the learned Additional Public Prosecutor, the petition is liable to be dismissed. 4.We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5.The learned Additional Public Prosecutor produced before us the pro-forma containing dates and events. It is seen from the said pro- forma, the representation of the detenu, dated 20.12.2010, had been received by the Government on 28.12.2010. Though the Government had called for remarks from the detaining authority on the next day, i.e. 29.12.2010, such remarks were received by the Government only on 06.01.2011. Thus, there is seven days delay in furnishing the remarks to the Government. Though, it is submitted by the learned Additional Public Prosecutor that there were two holidays in between 29.12.2010 and 06.01.2011, still there were five working days. In the counter affidavit filed by the detaining authority, it is stated that the representation was received from the Government on 03.01.2011 and the remarks were sent to the Government on the next day, i.e. 04.01.2011. However, there is no explanation for the delay in between 29.12.2010 and 02.01.2011. Further, it is seen from the pro-forma, the concerned Minister had dealt with the file on 10.01.2011. However, the rejection letter came to be prepared only on 14.01.2011, after a delay of three days. Even for this delay, there is no explanation in the counter affidavit filed by the detaining authority. 6.In District Collector vs. S.K. Hasmath Beevi, reported in 2001(5) SCC 401, the Supreme Court has held as follows: "Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article 22(5) in itself does not say to whom a representation could be made or who will consider the representation, but because of the language of Article 22(5) and because of the fact that an Order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure of time taken by the appropriate authority for considering a representation, it should be considered and disposed of by the Government as soon as it is received." https://hcservices.ecourts.gov.in/hcservices/ 3 7.In Rajammal Vs. State of Tamil Nadu, reported in 1999(1)SCC 417, the Apex Court has held that the representation was received by the Secretary to the government on 05.02.1998, the government which received the remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. Thereafter, the files were submitted to the minister, who received it on tour. Finding that there was no valid explanation for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiated the detention. 8.Contending that even a delay of three days in disposal of representation would have the effect of vitiating order of detention, learned counsel for the petitioner has drawn our attention to the decision of this Court in 2007(2)MWN(Cr.)145 – Sumaya Vs. The Secretary to Govt., wherein the Division Bench has observed as under in paragraphs 5.3 and 5.4 as under: "5.3.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. 5.4 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., Dist.Jail,l 1986(1) SCC 650." We are in respectful agreement with the view taken by the Division Bench. 9.Law is well settled that since personal liberty of a person is involved in the preventive detention, the authorities concerned are required to deal with the representation with utmost dispatch and promptitude, without any unnecessary delay. Right to expeditious disposal of the representation by the State Government includes the right to communication of the result of the representation. The unexplained delay in the consideration and disposal of the representation would have the effect of vitiating the detention order and accordingly the detention order is liable to be quashed. 10.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 03.12.2010, passed by the 2nd respondent in his proceedings Cr.M.P.No.44/2010 (Goonda), is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Deputy Registrar(LA) /TRUE COPY/ Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Secretary,Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-9. 2.The District Magistrate and District Collector, Virudhunagar District. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Joint Secretary to Government, Public (Law and Order), Fort Saint George, Chennai – 9. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order in H.C.P.(MD)No.7 of 2011 Dated:29.04.2011 gb PA/20.06.2011/4P/6C https://hcservices.ecourts.gov.in/hcservices/