IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.01.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1494 of 2007 Velu ... Petitioner vs. 1. The State, rep. by the Secretary to Government, Prohibition and Excise Dept., Fort St. George, Chennai-9. 2. The District Collector & District Magistrate, Kanchipuram District, Villupuram. ... 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.V.Murugesan For Respondents: Mr.N.R.Elango Additional Public Prosecutor ORDER (Order of this Court was made by P.D.DINAKARAN,J.) The order of detention dated 19.9.2007, clamped on the detenu by name Panchalai by the second respondent in BDFGISSV.No.61 of 2007, branding her as a Bootlegger 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), is being challenged in this writ petition by her nephew. 2. On 24.08.2007, when the Sub Inspector of Police and his police party were on their routine raids, they found the detenue selling illicit arrack behind a bush. On seeing the police, persons who had gathered there to consume arrack disappeared and the detenue was arrested. Police secured the remaining arrack and vessels used for selling. A case was registered in Orathy Police Station Cr.No.150/2007 under Section 4(1)(aaa), 4(1)(i), 4(1-A) of the Tamil Nadu Prohibition Act r/w 6 & 11 of RS Rules, 2000 and the detenue was sent to judicial custody. Sample arrack was sent for https://hcservices.ecourts.gov.in/hcservices/ chemical analysis and the Chemical Analyst has opined that the sample contained atropine, which is poisonous. 3. The detaining authority, taking note of the above ground case as well as five adverse cases on the file of same police station in Crime Nos.1/03, 64/03, 129/05, 142/05 and 135/07 and having arrived at the subjective satisfaction that there is a compelling necessity to detain the detenue in order to prevent her from indulging in the activities which are prejudicial to the maintenance of public order and public health, ordered her detention dubbing her as a Bootlegger. 4. The learned counsel for the petitioner challenges the impugned order of detention only on the ground of delay in considering the representation dated 25.10.2007 made on behalf of the detenue. Hence, we do not propose to go into other aspects of the case, as the said ground has to succeed. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. Coming to the case on hand, admittedly, objecting to the order of detention dated 19.09.2007, a representation dated 25.10.2007 was made on behalf of the detenue, which was received by the Government on 26.10.2007. Remarks were called for from the detaining authority on 29.10.2007, who, in turn, called for parawar remarks from the sponsoring authority and the same was received on 7.11.2007. The file was circulated on 9.11.2007, on which date, the Under Secretary and the Additional Secretary considered the same. The Minister concerned dealt with the file on 12.11.07 and rejected the same. However, the rejection letter was prepared only on 21.11.2007, after a delay of nine days, which is not properly explained. Even if the intervening holidays, viz.,17.11.07 and 18.11.07 (being Saturday and Sunday) are excluded, there is delay of seven days in preparing the rejection order, which is admittedly unexplained and inexcusable. Thereafter, it was sent to the detenu on 22.11.07 and served on him on 23.11.2007. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. As already stated, there is unexplained delay of seven days in preparing the rejection order, referred to above, which has rendered the detention illegal and hence, the petition has to succeed on the ground. Accordingly, the order of detention is set aside and the Habeas Corpus Petition is allowed. The detenue is directed to be set at liberty forthwith unless her presence is required in connection with any other case. sra Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9. 2. The District Collector & District Magistrate, Kanchipuram District, Villupuram. 3. The Superintendent, Special Prison for Women, Chennai. 4. The Public Prosecutor, High Court, Madras. 5. The Joint Secretary, Public (Law & Order) Fort St. George, Chennai-600 009. MDR(CO) DCP/5.2 H.C.P.No.1494 of 2007 https://hcservices.ecourts.gov.in/hcservices/