IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.1.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1727 of 2007 Kubendran .. Petitioner Vs. 1. State of Tamil Nadu rep. by Secretary to Government Prohibition and Excise Department Fort St.George, Chennai 600 009. 2. The District Magistrate and District Collector Salem District Salem. .. Respondents ----- Petition under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus as stated therein. ----- For Petitioner : Mrs.R.Subadra Devi For Respondents : Mr.N.R.Elango Additional Public Prosecutor ----- O R D E R (Made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu Malar, mother-in-law of the petitioner, as the said authority arrived at the subjective satisfaction that the detenu 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). 2.1. The order of detention dated 21.11.2007 came to be passed by the second respondent on the basis of the ground case said to have taken place on 27.10.2007, https://hcservices.ecourts.gov.in/hcservices/ complaint of which was given by one Velanganni. According to the complainant, on 27.10.2007, when he purchased and consumed arrack sold by the detenu, he felt giddiness, irritation in his throat and tongue, blurring in vision and vomited. Suspecting that the detenu had mixed some poisonous substance in the arrack to increase intoxication, he lodged a complaint. Based on the above-said complaint, the Sub Inspector of Police, Gangavalli Police Station registered a case in Crime No.557 of 2007 for the offences punishable under Sections 4(1)(i) and 4(1-A) of the Tamil Nadu Prohibition Act. The Sub Inspector of Police along with his police party conducted prohibition raid and found the detenu selling arrack. The detenu was arrested on the spot and the contraband was seized. On chemical analysis, it was found that the arrack is mixed with 5.8 mg. of atropine per 100 ml. arrack and the same is 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.4/2006, 191/2006, 335/2006, 354/2006 and 332/2007 on the file of Gangavalli Police Station for the offence punishable under Sections 4(1)(aaa) of the Tamil Nadu Prohibition Act. 2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order and public health, passed the impugned order. 3. Challenging the abovesaid detention, the son-in- law of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records leading to the detention of the detenu vide detention order dated 21.11.2007 on the file of the second respondent made in CMP.No.10/B.L.A/C2/2007, to quash the same and to consequently direct the respondents herein to produce the body and person of the detenu before this Court and to set her at liberty from the Special Prison for women, Vellore. 4. The learned counsel for the petitioner challenges the impugned order of detention mainly on the ground of delay in considering the representation made on behalf of the detenu. Hence, we do not propose to go into the other aspects of the case. https://hcservices.ecourts.gov.in/hcservices/ 5.1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point. 5.2. 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 . 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., Distt. Jail, (1986) 1 SCC 650. 5.5. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 6. Coming to the case on hand, admittedly, objecting to the order of detention dated 21.11.2007, a representation was made on behalf of the detenu on 2.12.2007, which was received by the Government on 5.12.2007. Remarks were called for from the detaining authority on 7.12.2007, which was received by the detaining authority on 10.12.2007. The detaining authority, in turn, called for parawar remarks from the sponsoring authority on 11.12.2007 and the same was received on 18.12.2007, with a delay of five days, excluding two public holidays. The detaining authority sent it to the Government on 18.12.2007. The remarks was received by the Government on 26.12.2007. The file was circulated on 27.12.2007 and the same was considered by the Under Secretary and the Additional Secretary and the Hon'ble Minister on 28.12.2007. But, the rejection order was prepared on 7.1.2008 with a delay of five days, excluding five public holidays and sent to the detenu on 8.1.2008. 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 the delay. 7. 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 https://hcservices.ecourts.gov.in/hcservices/ 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.” 8. 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 . 9. The delay which stands unexplained is fatal to the detention order attracting Article 22 of the Constitution of India and therefore, the petition must succeed and the same is ordered as prayed for. The detenu is directed to be set at liberty forthwith unless her custody is required in connection with any other case. ATR Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Secretary to Government State of Tamil Nadu Prohibition and Excise Department Fort St.George, Chennai 600 009. 2. The District Magistrate and District Collector Salem District Salem. 3. The Superintendent Special Prison for Women Vellore. https://hcservices.ecourts.gov.in/hcservices/ 4.The Joint Secretary Govt, Public Law and order Department, Fort St George, Chennai-9. 5. The Public Prosecutor High Court, Madras. KSJ (co) sg 31/01/08 HCP No.1727 of 2007. 9.1.2008. https://hcservices.ecourts.gov.in/hcservices/