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 Habeas Corpus Petition No.1448 of 2007 Dhanalaxmi .. Petitioner Vs 1. State of Tamil Nadu rep. by its Secretary Department of Prohibition and Excise Fort St. George, Chennai 9. 2. The District Magistrate and District Collector Nagapattinam District Nagapattinam. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. For Petitioner : Mr.R.Sankarasubbu 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 petitioner, who is the son of detenu Mohan @ Nadavandi Mohan, son of Chandrakasan, who was incarcerated by order dated 22.9.2007 of the second respondent under Section 3(1) of 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 of 1982) branding him as a Bootlegger, has preferred this writ petition for issue of a Writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent dated 22.9.2007 in Ref.No. COC.No.55/2007 against the petitioner's son Mohan @ Nadavandi Mohan, son https://hcservices.ecourts.gov.in/hcservices/ of Chandrakasan, now confined at Central Prison, Tiruchirappalli, to set aside the same and to direct the respondents to produce the above said detenu before this Court and set him at liberty. 2. On 11.9.2007, the Inspector of Police, Keezhaiyur Police Station, along with police party, conducted prohibition raid at Thandavamoorthikadu. At that time, the detenu was driving a motor cycle bearing Registration No.PY-02-D-6670 rashly. On interception, the Inspector found a lorry tube containing 110 litres of Pondicherry arrack in a gunny bag at the rear seat of the motor cycle. The detenu tried to escape from the spot, but the Inspector of police arrested the detenu, seized the contraband and registered a case in Crime No.232 of 2007 for the offence punishable under Section 4(1)(aaa) r/w 4(1-A) of the Tamil Nadu Prohibition Act, 1937 (Transport). Samples of arrack were taken and were sent for chemical analysis, which disclosed that the arrack was mixed with atropine of 2.9mg% W/V. 3. The second respondent, taking note of this case as a ground case and finding that there are four adverse cases pending against the detenu in Crime Nos.223 and 299 of 2007 on the file of Vailankanni Police Station and Crime Nos.154 and 197 of 2007 on the file of Keezhiyur Police Station for the offence punishable under the Tamil Nadu Prohibition Act, having satisfied that there is a compelling necessity to detain the detenu in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order and public health, ordered his detention dubbing him as a Bootlegger. 4. Since the learned counsel for the petitioner wants to restrict his submission only on the ground of delay in considering the representation, we do not propose to go into the other aspects, except to refer the delay in considering the representation as highlighted by the counsel for the petitioner. 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. https://hcservices.ecourts.gov.in/hcservices/ 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 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. 6.1. In the instant case, the impugned order of detention came to be passed on 22.9.2007. A representation was made to the Government and the same was received by it 27.9.2007. Remarks were called for from the detaining authority on 28.9.2007, which was received by the detaining authority on 3.10.2007. The detaining authority, in turn, called for parawar remarks from the sponsoring authority on 15.10.2007, after a delay of twelve days. The remarks of the sponsoring authority was received only on 1.11.2007, after a delay of seventeen days. The detaining authority sent the remarks to the Government on 3.11.2007 and the same was received on 6.11.2007. Thereafter, the file was submitted on 6.11.2007 and the same was considered by the Under Secretary and Additional Secretary on 7.11.2007 itself. The file was considered by the Minister on 9.11.2007. The rejection letter was prepared on 9.11.2007. The rejection letter was sent to the detenu on 12.11.2007 and served on him on 14.11.2007. https://hcservices.ecourts.gov.in/hcservices/ 6.2. Even taking note of the intervening holidays, viz., 6.10.2007, 7.10.2007, 13.10.2007 and 14.10.2007, the delay of eight days on the part of the detaining authority in calling for parawar remarks from the sponsoring authority and 20.10.2007, 21.10.2007, 27.10.2007, 28.10.2007 (being Saturday and Sunday), the delay of thirteen days on the part of the Sponsoring Authority in sending remarks to the detaining authority, which have not been properly explained, cannot be excused. 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 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. In the instant case, there is delay of eight days in calling for parawar remarks by the detaining authority and thirteen days in sending parawar remarks by the Sponsoring Authority to the Detaining Authority, as referred to above, and the same, in our considered opinion, vitiate the impugned order of detention. We are, therefore, inclined to allow this petition. https://hcservices.ecourts.gov.in/hcservices/ In the result, the order of detention dated 22.9.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ATR To: 1. The Secretary to Government State of Tamil Nadu Prohibition and Excise Department Fort St. George, Chennai 9. 2. The District Magistrate and District Collector Nagapattinam District Nagapattinam. 3. The Superintendent Central Prison, Trichy. 4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 5. The Public Prosecutor, High Court, Madras. H.C.P.No.1448 of 2007 RS(CO) RVL 07.01.2008 https://hcservices.ecourts.gov.in/hcservices/