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.1680 of 2007 B.Revathy ... Petitioner vs. 1. The State of Tamilnadu, rep. by its Secretary Prohibition & Excise Dept., Fort St. George, Chennai-9. 2. The District Collector & District Magistrate, Cuddalore District, Cuddalore. ... 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.Bharath Kumar For Respondents: Mr.N.R.Elango Additional Public Prosecutor ORDER (Order of this Court was made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu Balu, Son of Radhakrishna Naidu, as the said authority arrived at the subjective satisfaction that the said detenu is a Video Pirate and has to be detained under the provisions 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). 2.1. The detention order was passed on the basis of the ground case in Crime No.78 of 2007 on the file of Video Piracy cell, CBCID, Cuddalore for offences under Section 51, 52(A) r/w 63, 68(A) of Copy Right Act, 1957 and 4 and 6 https://hcservices.ecourts.gov.in/hcservices/ of Indecent Representation of Women Prohibition Act 1986 and Section 292(A) IPC, complaint of which was given by Selvaraj, Sub-Inspector of Police alleging that the detenu is selling pirated obscene and newly released film VCDs, DVD cassettes in his shop namely, Priya Musicals, near Kurinjipadi Bus Stand. Pursuant to the said complaint, the Inspector of Police proceeded to the place and searched it and found certain obscene CDs, pirated VCDs and DVDs and seized the same. On interrogation, the detenu admitted the offence and he was arrested and after registration of the case, referred to above, he was sent to Court for judicial remand. 2.2. Apart from the above, the detaining authority also took note of two adverse cases, one in Kurinjipadi P.S. Crime No.35/2007 and the other in Cuddalore Video Piracy Cell, CBCID Crime No.18/2007 for similar offences. 2.3.The detaining authority, having satisfied that there is compelling necessity to detain the detenu in order to prevent him from indulging in activities which are prejudicial to the maintenance of public order, ordered his detention dubbing him as a Video Pirate. 3. Challenging the said detention, the wife of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records relating to the detention order in Memo No.C3/DO/32/2007 dated 1.10.2007 passed by the second respondent herein, to quash the same and to direct the respondents to produce the detenu, now detained in Central Prison, Cuddalore, and set him at liberty. 4. The only contention advanced by the learned counsel for the petitioner is that there is delay in considering the representation and the same has rendered the detention illegal. 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. In the instant case, the impugned order of detention came to be passed on 1.10.07. A representation dated 6.11.2007 was made on behalf of the detenu, which was received by the Government on 9.11.07. Remarks were called for from the detaining authority on the same day and the same was received by the detaining authority on 12.11.2007. Parawar remarks were called for on 13.11.2007 from the sponsoring authority and it was received on 14.11.2007 and sent to the Government on 15.11.2007. On receipt of the same on 16.11.2007, the file was circulated on 19.11.2007, on which date the Under Secretary and Additional Secretary considered the same and the Minister concerned dealt with the file on 20.11.2007 and rejected the representation. However, the rejection letter was prepared only on 23.11.2007 and even thereafter, it was sent to the detenu only on 26.11.2007 and served on him on 27.11.2007. Even if we exclude the intervening holiday, viz. 21.11.2007, being Sunday, still there is delay of two days in preparing the rejection letter and there is delay of three days in sending the same to the detenu. The said 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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. Consequently, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his 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, Cuddalore District Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent, Central Prison, Cuddalore. 4.The Joint Secretary to Govt, Public Law and order Department, Fort St George, Chennai.9. 5. The Public Prosecutor, High Court, Madras. • One cc to Mr. R. Bharathkumar, Advocate SR 1482/08 SA (co) sg 01/02/08 H.C.P.No.1680 of 2007 08.01.2008 https://hcservices.ecourts.gov.in/hcservices/