1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:12.12.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Habeas Corpus Petition (MD) No.771 of 2011 Vellaiammal, W/o.Dakshinamoorthy @ Chinna Sachu :Petitioner -Vs- 1.The State, rep.by The District Magistrate & District Collector, Thanjavur, Thanjavur District. 2.The Secretary, The Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. :Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus, by calling for the records from the 1st respondent in P.D.No.15/2011, dated 30.07.2011, setting aside the same passed by the 1st respondent and consequently setting the detenu, namely Dakshinamoorthy @ Chinna Sachu, aged about 37 years, the petitioner's husband, now confined in Central Prison, Trichy, at liberty. For Petitioner .. Mr.A.Arun Prasad For Respondents .. Mr.R.Ramachandran,Addl. Public Prosecutor. ORDER (Order of the Court was made by K.N.BASHA, J.) The petitioner is the wife of the detenu, by name Dakshinamoorthy @ Chinna Sachu and she has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the Detention Order, dated 30.07.2011, slapped on her husband by the 1st respondent, branding him as a “Goonda”, as contemplated under 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 14/1982) read with the order issued by the Government in G.O.(D) No.147, Home, Prohibition and Excise (XVI) Department, dated 18.07.2011, under Sub-section (2) of Section 3 of the said Act. 2.Mr.A.Arun Prasad, learned counsel appearing for the petitioner, would contend that though there are several grounds raised by the petitioner, he is confining his arguments only to the prime ground to the effect of delay in considering the representation of the detenu, dated 25.08.2011. It is contended that the representation of the detenu was received by the Government on 30.08.2011 and thereafter remarks were called for on 02.09.2011 and such remarks were received only on 10.11.2011, that too after five reminders sent in between. It is pointed out that there are 69 days between remarks called for and remarks received by the Government and out of which, there were 14 holidays and if we deduct 14 days, still there is a delay of 55 days in furnishing the remarks by the detaining authority and there is no explanation for such a long delay. It is further contended that the file was dealt with by the Deputy Secretary on 10.11.2011 and thereafter order was passed by the concerned minister only on 20.11.2011 and as such there is 10 days delay. If two days are deducted towards holidays, still there is a delay of 8 days and here also there is no explanation for such a delay. Learned counsel would contend that the total delay of 63 days in considering the representation would vitiate the detention order and, therefore, the impugned detention order is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 2 3.Heard the learned Additional Public Prosecutor on the submissions made by the learned counsel for the petitioner. It is contended that there is no deliberate delay on the part of the authorities while considering the representation. It is contended that immediately on receipt of representation, remarks were called for from the detaining authority and on receipt of such remarks, final order was passed by the Government rejecting the representation. 4.We have given our careful and anxious considerations to the rival contentions put-forward by either side and also perused the materials available on record, including the impugned order of detention and the pro- forma submitted by the learned Additional Public Prosecutor. 5.A perusal of the pro-forma produced by the learned Additional Public Prosecutor makes it crystal clear that representation of the detenu, dated 25.08.2011, was received by the Government on 30.08.2011 and thereafter remarks were called for on 02.09.2011. It is pertinent to note that reminders have been sent on 15.09.2011, 26.09.2011, 07.10.2011, 18.10.2011 and 01.11.2011 to the detaining authority to furnish the remarks. But, inspite of the same, the remarks were received by the Government only on 10.11.2011, resulting in a delay of 69 days. It is pointed out that there are 14 days holidays. Even if we give concession to those 14 days, still there is a delay of 55 days. The fact remains that there is absolutely no explanation for such an inordinate delay. 6.It is also seen from the pro-forma that after the receipt of the remarks from the detaining authority, the file was dealt with by the Deputy Secretary on 10.11.2011 and thereafter the file was forwarded to the concerned Minister and ultimately the representation was rejected on 20.11.2011 and ,as such, there is a delay of 10 days and if we give two days concession towards intervening holidays, still there is 8 days delay and there is no explanation for the said delay of 8 days also. Thus, there is totally 63 days delay in considering and disposing of the representation of the detenu, and there is absolutely no explanation for the said inordinate delay in considering the representation, which, in our considered opinion, would certainly vitiate the order of detention. 7.It is also worthwhile to refer the well settled principles of law laid down by the Hon'ble Apex Court as to the effect of delay in considering the representations of the detenus in some of its decision. “(i) The Hon'ble Apex Court in Rashid sk. v. State of West Bengal reported in 1973 (3) SCC 476 has held as follows: “The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty – the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.” (ii) The Honb'le Apex Court in Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65 held that 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 https://hcservices.ecourts.gov.in/hcservices/ 3 of Article 22(5) of the Constitution of India. (iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others, reported in 1989 SCC (Crl) 554 has held: The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible........ When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5). (iv) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, (1986) 1 SCC 650, the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. (v) In yet another decision of the Hon'ble Apex Court reported in (1999) 1 SCC 417 (Rajammal v. State of Tamil Nadu), it is held that 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 preempted 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 the 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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. (vi)In K.M.Abdulla Kunni v. Union of India, (1991) 1 SCC 476, it is held as follows:- “That part, it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” 8.Accordingly, the detention order passed by the first respondent in P.D.No.15/2011, dated 30.07.2011, is hereby quashed and the detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. No costs. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The District Magistrate & District Collector, Thanjavur, Thanjavur District. 2.The Secretary, The Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 3.The Joint Secretary to Government, Public (Law & Order), Fort St. George, Chennai-9. 4.The Superintendent, Central Prison, Tiruchirapalli. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1CC to Mr.A.Arun Prasad, Advocate. SR.No.43492. gb RP/09.01.2012/4P/7C. Order in HCP (MD) No.771 of 2011 Dated:12.12.2011 https://hcservices.ecourts.gov.in/hcservices/