IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.12.2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1469 of 2007 Rajamma .. Petitioner Vs. 1. The Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9. 2. The Commissioner of Police Coimbatore City Coimbatore. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Mr.N.Edwin Jeyakumar 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, husband 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). https://hcservices.ecourts.gov.in/hcservices/ 2.1. The order of detention dated 13.2.2007 was passed on the basis of ground case that occurred on 22.1.2007, complaint of which was given by one Chandrasekar. According to the complainant, on 22.1.2007 at about 09.45 pm when he was running a tiffin stall in a pushcart, the detenu and his associate came there in a motorcycle and demanded Rs.500/-. When the complainant refused to give money, the detenu took a knife and threatened to slit his throat. The associate of the detenu forcibly took away Rs.500/- from the shirt pocket of the complainant. When few persons tried to catch the detenu and his associate, the detenu brandished knife and threatened to kill them. 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. Taking advantage of the situation, the detenu and his associate escaped from the spot. Based on the complaint given by the complainant, a case was registered in Crime No.130 of 2007 on the file of R.S.Puram Police Station, Coimbatore City. The case was taken up for investigation, the detenu was arrested and remanded. 2.2. The detaining authority also took note of four adverse cases pending against the detenu, viz., Crime Nos.234 of 2004 and 482 of 2005 on the file of Vadavalli Police Station for the offences punishable under Sections 397 and 379 IPC; Crime No.495 of 2006 on the file of Ramanathapuram Police Station for the offence punishable under Section 379 IPC; and Crime No.89 of 2007 on the file of R.S.Puram Police Station for the offence punishable under Section 379 IPC. 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 wife of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records in C.No.10/G/18/2007, dated 13.2.2007 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, Coimbatore 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. https://hcservices.ecourts.gov.in/hcservices/ 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 13.2.2007. A representation was made to the Government on 4.9.2007 and the same was received by it 5.10.2007. Remarks were called for from the detaining authority on 8.10.2007 and the remarks of the detaining authority were received by the Government on 16.10.2007. The file was considered by the Under Secretary and the Additional Secretary on 17.10.2007 and the file was considered by the Hon'ble Minister on 18.10.2007. However, rejection letter was prepared only on 23.10.2007, viz., after a delay of 3 days, excluding two 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: "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 . https://hcservices.ecourts.gov.in/hcservices/ The delay which stands unexplained is fatal to the detention 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 13.2.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. sasi/atr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Fort St.George, Chennai – 9. 2. The Commissioner of Police Coimbatore City Coimbatore. 3. The Superintendent Central Prison, Coimbatore. 4. The Inspector of Police, R. S. Puram Police Station, Coimbatore City. 5. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 6. The Public Prosecutor High Court, Madras. VC(CO) SR/7.1.2008 H.C.P.No.1469 of 2007 https://hcservices.ecourts.gov.in/hcservices/