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.1420 of 2007 Sathiya .. Petitioner Vs. 1. The State, rep. by its Secretary to Government Prohibition and Excise Department Secretariat, Chennai-9. 2. The District Collector and District Magistrate Kancheepuram District Kancheepuram. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus directing the respondents to produce the detenue viz, Tmt.Sarala, wife of Arumugham, who is now detained in Special Prison for Women, Puzhal, Chennai-66 in pursuance of the detention order passed by the 2nd respondent on 16.9.2007 in B.D.F.G.I.S.S.V.No.60/2007 before this Honourable Court, call for the records, set aside the order and set the detenue at liberty forthwith as stated therein. For Petitioner : Mr.S.Swamidoss Manokaran 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 detenue Sarala, sister of the petitioner, as the said authority arrived at the subjective satisfaction that the said detenue is a Bootlegger and she 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 16.9.2007 came to be passed by the second respondent on the basis of the ground case said to have taken place on 28.8.2007. On 28.8.2007, when the Inspector of Police, Prohibition Enforcement Wing, Madurantakam and his police party conducted prohibition raid, they found the detenue selling arrack. The detenue was arrested on the spot and the contraband was seized. A case was registered in Crime No.959 of 2007 for the offences punishable under Sections 4(1)(i), 4(1) (aaa) and 4(1-A) of the Tamil Nadu Prohibition Act. On chemical analysis, it was found that the three samples of diluted rectified spirit seized were mixed with 9.2 mg., 9.4 mg and 9.5 mg of atropine a poisonous substance. 2.2. Apart from the above, the detaining authority also took note of the five adverse cases pending against the detenu, viz., Crime Nos.247 and 867 of 2006 and 17 of 2007 on the file of Madurantakam Police Station for the offences punishable under Sections 4(1)(i), 4(1)(aa), 4(1)(aaa), 4(1- A) of the Tamil Nadu Prohibition Act read with Rules 6 and 11 of the RS Rules, 2000; and Crime Nos.91 and 893 of 2007 on the file of Madurantakam Prohibition Enforcement Wing for the offences punishable under Sections 4 (1)(i), 4(1)(a), 4(1)(aaa), 4(1-A) of the Tamil Nadu Prohibition Act read with Rules 6 and 11 of the RS Rules, 2000. 2.3. The detaining authority, having satisfied that the detenue is indulging in activities which are prejudicial to maintenance of public order and public health, passed the impugned order. 3. Challenging the above said detention, the sister of the detenue has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records in DBFGISSV No.60/2007, dated 16.9.2007 passed by the second respondent, to set aside the same and to direct the respondents to produce the detenue, now confined in the Special Prison for Women, Puzhal, Chennai, before this Court and to set her 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. https://hcservices.ecourts.gov.in/hcservices/ 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 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 16.9.2007. A representation dated 20.9.2007 was made to the Government and the same was received by it on 24.9.2007. Remarks were called for from the detaining authority on 25.9.2007 and the remarks of the detaining authority were received on 4.10.2007. The file was https://hcservices.ecourts.gov.in/hcservices/ considered by the Under Secretary and the Additional Secretary on 5.10.2007. The Hon'ble Minister considered the file on 8.10.2007. However, the rejection letter was prepared only on 11.10.2007, viz., after a delay of 3 working days. This delay 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. 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 . 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 16.9.2007 is set aside. The detenue is directed to be set at liberty forthwith unless her custody is required in connection with any other case. sasi/atr Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai – 9. 2. The District Collector and District Magistrate Kancheepuram District at Kancheepuram 3. The Joint Secretary to Government, Public (Law & Order) Department, Fort St. George, Chennai-9. 4. The Superintendent, Special Prison for Women, Puzhal, Chennai-66. 5. The Public Prosecutor High Court, Madras. PUR(CO) DCP/4.1 H.C.P.No.1420 of 2007 https://hcservices.ecourts.gov.in/hcservices/