IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.11.2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1278 of 2007 Mari @ Marnan .. Petitioner Vs. 1. The Secretary to Government Government of Tamil Nadu Home, Prohibition & Excise Department Secretariat, Chennai-600 009. 2. The Commissioner of Police Greater Chennai. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus call for the records of detention order made in Memo No.195/2007 dated 7.5.2007 passed by the Commissioner of Police, Greater Chennai, the second respondent herein against the petitioner/detenu Mari @ Maran S/o. Balaraman, aged about 24 years who is confined at Central Prison II, Puzhal, Chennai 66 and set aside the same and produce him before this Honourable Court and set him at liberty. For Petitioner : Mr.M.Boopathy 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/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, https://hcservices.ecourts.gov.in/hcservices/ 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 7.5.2007 came to be passed by the second respondent on the basis of the ground case in Crime No.1556 of 2007 for the offence punishable under Sections 341, 336, 397 read with 506(ii) IPC, complaint of which was given by one Raja, alleging that the detenu and his associates, on 11.4.2007, at about 0700 hours, wrongfully restrained him, threatened him by knife and took away Rs.100/- and a wrist watch; that when he raised hue and cry the public came for his rescue and on noticing the same the detenu and associates picked up stones and pelted the same against them; that the public noticing the atrocious activities ran for safer places out of fear of danger to their lives; and taking advantage of the situation, the detenu and his associates escaped. The case was taken for investigation and the detenu was arrested. 2.2. Apart from the above, the detaining authority also took note of two adverse cases pending against the detenu, viz., Crime Nos.1000 and 1300 of 2007 on the file of Tambaram Police Station for the offence punishable under Sections 341, 397 read with 506(ii) IPC and 392 IPC respectively. 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, detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to direct the respondents to produce the records pertaining to the detention of the detenu, by order of detention passed by the second respondent in Memo No.195/BDFGISSV/2007, dated 7.5.2007, to set aside the same and to direct the respondents to cause production of body and person of the detenu before this Court and to set him at liberty. 4. Heard Mr.M.Boopathy, 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. https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 7.5.2007. A representation was made to the Government on 8.8.2007 and the same was received by it 10.8.2007. Remarks were called for from the detaining authority on 13.8.2007 and the remarks were received from the detaining authority by the Government on 17.8.2007. The file was considered by the Under Secretary, Additional Secretary on 20.8.2007. The Hon'ble Minister rejected the representation of the detenu on 21.8.2007, however the rejection letter was prepared on 24.8.2007, viz., after a delay of three working days, and thereafter, the rejection letter was sent to the detenu on 28.8.2007, viz., after four days, since its preparation. The delay in considering the representation, 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 would fatalise 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 7.5.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. Sasi Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Secretary to Government State of Tamilnadu Home, Prohibition and Excise Department Secretariat, Chennai – 9. 2. The Commissioner of Police Greater Chennai, Egmore Chennai-600 008. 3. The Superintendent, Central Prison, Puzhal II, Chennai 66. 4. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 5. The Public Prosecutor High Court, Madras. + 1 cc to Mr. M. Bhoopathy, Advocate SR No. 68828 BVR(CO) SR/6.12.2007 H.C.P.No.1278 of 2007 https://hcservices.ecourts.gov.in/hcservices/