IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.8.2007 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.615 of 2007 Kasthuri Thilagam .. Petitioner Vs 1. The Government of Tamil Nadu rep. by its Secretary Home, Prohibition and Excise Department Fort St. George, Chennai-600 009. 2. The District Magistrate and District Collector Villupuram 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.V.Ramesh For Respondents : Mr.N.R.Elango Additional Public Prosecutor ORDER (Order of this Court was made by P.D.DINAKARAN,J.) The petitioner, who is the wife of the detenu, Arunagiri, son of Dhandapani, who was incarcerated by order dated 3.4.2007 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 Bootlegger, has preferred this writ petition for issue of a Writ of Habeas Corpus to call for the records pertaining to the order of detention passed by the second respondent in proceedings C2/14421/2007, dated 3.4.2007, to set aside the same and to direct the respondent to produce the detenu https://hcservices.ecourts.gov.in/hcservices/ now confined in Central Prison, Cuddalore before this Court and to set him at liberty. 2.1. The order of detention dated 3.4.2007 came to be passed based on the ground case said to have taken place on 18.3.2007 at about 10.00 a.m., when the Sub Inspector of Police, Valavanur Police Station along with his party conducted prohibition raid at Salayampalayam Village, they found the detenu selling arrack, they surrounded him and found one white colour plastic can containing 3 Litres of arrack, two plastic tumblers and arrack sold amount of Rs.35/- in the scene of occurrence. Based on the confession of the detenu, another white colour plastic can filled with 35 litres of poisonous arrack was seized. The accused was brought to Valavanur Police Station and a case was registered in Crime No.225 of 2007 for the offences punishable under Section 4(1-A), 4(1)(i) of the Tamil Nadu Prohibition Act, 1937 and the Judicial Magistrate No.II, Villupuram, ordered to remand the accused for judicial custody. The sample bottles were sent for chemical analysis, and the Scientific Assistant Grade-2 (S.G.), Regional Forensic Science Laboratory, Villupuram informed that the samples contained Ethyl Alcohol, Acids, Easters, Higher Alcohols, Aldehydes and Atropine of 3.18 mg% W/V, which is a poisonous substance. 2.2. The second respondent, taking note of the above case as a ground case and finding that there are three adverse cases pending against the detenu for various offences punishable under Sections 4(1)(aaa) and 4(1)(aa) of the Tamil Nadu Prohibition Act having satisfied that there is a compelling necessity to detain him in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public health and public order, ordered his detention dubbing him as a Bootlegger. 3. Since Mr.V.V.Ramesh, learned counsel for the petitioner challenges the impugned order of detention dated 3.4.2007 mainly on the ground of delay in considering the representation dated 11.4.2007 made on behalf of the detenu, we do not propose to go into the other aspects of the case. 4.1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point. 4.2. 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 . https://hcservices.ecourts.gov.in/hcservices/ 4.3. 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. 4.4. 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. 4.5. 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. 5. Coming to the the case on hand, admittedly, on receipt of the order of detention dated 3.4.2007, a representation was sent to the detaining authority on 11.4.2007, which was received by them on 16.4.2007, and remarks were called for on 17.4.2007 and the same was received at the Collectorate on 26.4.2007. Parawar remarks were called for from the Sponsoring Authority on 28.4.2007. However, the records show that the Sponsoring Authority took time from 28.4.2007 to 7.5.2007 (Nine days) to submit its remarks to the Government, which is not properly https://hcservices.ecourts.gov.in/hcservices/ explained. Even taking note of the intervening public holidays, viz., 28.4.2007, 29.4.2007, 5.5.2007 and 6.5.2007 (4 days), the delay of five days in sending the remarks to the Government is admittedly unexplained and inexcusable. 6. 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.” 7. 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 . 8. In the instant case, there is delay of five days in considering the representation, as referred to above, and the same, in our considered opinion, vitiates the impugned order of detention. We are, therefore, inclined to allow this petition. The order of detention dated 3.4.2007 is quashed. 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. sasi https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Secretary Home, Prohibition and Excise Department Government of Tamil Nadu Fort St. George, Chennai-600 009. 2. The District Magistrate and District Collector Villupuram District Villupuram. 3. The Superintendent of Central Prison, Cuddalore. 4. The Joint secretary to Government Public Law and order , Fort St,. George, Chennai-9. 5. The Public Prosecutor High Court, Madras-104 1 cc to Mr.N.R. Rajagopalan, Advocate, Sr. 53627 H.C.P.No.615 of 2007 NSM (CO) kk 6/9 https://hcservices.ecourts.gov.in/hcservices/