1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.09.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN H.C.P(MD)No.496 of 2011 Anbu : Petitioner Vs. 1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 9. 2. The District Collector and District Magistrate Thanjavur District : Respondents Prayer:- This Habeas Corpus Petition is filed to issue a Writ of Habeas Corpus to call for records from the 2nd respondent in PD.No.3/2011 dated 23.01.2011, to set aside the same and to set at liberty the detenu Anbu, aged 38 years old, son of Kaliyan, now detained in the Central Prison, Thiruchirappalli. For Petitioner : Mr.C.Elaman For Respondents : Mr.P.Jyothi, APP ORDER (Order of the Court was made by ARUNA JAGADEESAN J.) The petitioner is the detenu. The petitioner has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the impugned detention order dated 23.01.2011, slapped on the detenu branding him as “Goonda” as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982). 2. Mr.C.Elaman, the learned counsel for the petitioner mainly contended that there is unexplained delay in considering and disposing of the representation of the detenu, which would vitiate the impugned detention order. It is pointed out by the learned counsel for the petitioner that the detenu sent his representation dated 29.01.2011 and the same was received by the Government on 08.02.2011 and remarks were called for on 09.02.2011 and and remarks https://hcservices.ecourts.gov.in/hcservices/ 2 have been received on 24.02.2011 and the file was submitted on 25.02.2011 for consideration of the authorities concerned and as such, even calling for the remarks and for receiving the remarks and for submitting the file before the authorities concerned for consideration, after deducting four intermittent holidays, there is a delay of twelve days and there is no explanation for the same and as such, the impugned order of detention is vitiated and the same is liable to be quashed. 3. In support of his contentions, the learned counsel for the petitioner placed reliance on the decision of this Court reported in 2007-2-MWN-Cr-145-DB (Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another). 4. Per contra, Mr.P.Jyothi, the learned Additional Public Prosecutor would submit that for receiving the remarks and submitting the remarks before the authorities concerned for consideration, there is a delay of twelve days only. He would submit that four intermittent holidays intervened which has resulted in the delay in considering the representation and that there was no deliberate delay on the part of the authorities concerned to consider and dispose of the representation of the detenu. It is contended that such a delay is not fatal to the impugned detention order, as the authorities concerned are dealing with the file right from the date of receipt of the remarks. 5. We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and also perused the impugned order of detention and the materials placed on record. 6. At the outset, it is to be stated by this Court that there is an unexplained delay in even calling for the remarks and receiving the remarks and submitting the file before the concerned authorities for their consideration. The perusal of the proforma produced by the learned Additional Public Prosecutor would reveal that the detenu sent his representation dated 29.01.2011 and the same was received by the Government on 08.02.2011 and remarks were called for on 09.02.2011 and and remarks have been received on 24.02.2011 and the file was submitted on 25.02.2011 for consideration of the authorities concerned. Therefore, it is evident that there are sixteen days delay and there were four intermittent holidays and if we give concession for those days, there is a delay of twelve days in receiving the remarks and submitting the file before the concerned authorities for their consideration. We are of the considered view that there is absolutely no explanation whatsoever forthcoming from the authorities concerned for such a delay. 7. At this Stage, it is relevant to refer to a few decisions of the Honourable Supreme Court and the same are extracted as follows:- https://hcservices.ecourts.gov.in/hcservices/ 3 “(i) The Hon'ble Apex Court in Rashid sk. v. State of West Bengal reported in 1973 (3) SCC 476 has held as follows:- “The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty – the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.” (ii) The Honb'le Apex Court in Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65 held that 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. (iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 has held:- The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. ....... When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5). (iv) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, https://hcservices.ecourts.gov.in/hcservices/ 4 1986 (1) SCC 650, the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. (v) In yet another decision of the Hon'ble Apex Court reported in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu), it is held that 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 preempted 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 the 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. (vi) In K.M.Abdulla Kunni v. Union of India, 1991 (1) SCC 476, it is held as follows:- “That part, it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” 8. The right to make a representation against an order of detention is not only a constitutional right, but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that https://hcservices.ecourts.gov.in/hcservices/ 5 there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lost both its purpose and meaning. The court in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would totally affect the order of detention and in that situation, continued detention would become bad. 9. This Court has repeatedly held that even the unexplained delay of three days is construed to be fatal to the detention order in the decision reported in 2007 (2) MWN (Cr.) 145 (DB) Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another. This court has also held that the unexplained delay in the disposal of the representation would definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. It is well settled that there should not be supine indifference, slackness or callous attitude in considering the representation. In the decisions cited supra, the unexplained delay of even three days is held to have vitiated the order of detention. 10. In so far as the case on hand is concerned, we have already pointed out that there is, totally, unexplained delay of twelve days in considering and disposing of the representation of the detenu and as such, the same would vitiate the impugned order of detention. It is needless to say that the guarantee of earliest disposal of the representation set out in Art.22(5) of the Constitution of India has been infringed. Therefore, in view of the above said observations, we are constrained to quash the impugned order of detention. 11. In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the 2nd respondent in PD.No.3/2011 dated 23.01.2011 is hereby quashed and the detenu Anbu is directed to be at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 6 To: 1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 9. 2. The Joint Secretary to Government of Tamil Nadu, Public (Law & Order) Department, Fort St. George, Chennai. 3. The District Collector and District Magistrate Thanjavur District 4. The Superintendent, Central Prison, Trichy. 5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. H.C.P(MD)No.496/2011 14.09.2011 Srcm NSV/26.9.11/6P/6C https://hcservices.ecourts.gov.in/hcservices/