IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.1.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1582 of 2007 Mohan .. Petitioner Vs. 1. State of Tamil Nadu rep. by its Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9. 2. The Commissioner of Police Greater Chennai Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Mr.C.C.Chellappan For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R (Made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu Mohan, son of Gajapathy, aged about 42 years, as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda and has to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers, 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.768 of 2007 on the file of T12, Poonamallee Police Station for the offence punishable under Sections 341, 427, 506(2) read with 392 IPC, complaint of which was given by one Mohan. On 8.9.2007, the https://hcservices.ecourts.gov.in/hcservices/ complainant was proceeding to Hotel for having tiffin. At that time, the detenu and three associates wrongfully restrained the complainant and threatened him at the knife point to hand over money. One of the associates of the detenu, voluntarily inserted his hands into the shirt pocket of the complainant and took away Rs.1200/-. The detenu took the cell phone of the complainant. While they were trying to escape, the complainant raised hue and cry. On hearing the same, the public came for his rescue and tried to apprehend them. On noticing the rushing of the public, the detenu and his associates picked up soda water bottles from the nearby shop and hurled the same against them. Fearing danger to their life, the public ran hither and thither resulting in traffic dislocation. 2.2. Apart from the above, the detaining authority also took note of five adverse cases pending against the detenu, viz., Crime Nos.366/2007 and 596/2007 on the file of Mangadu Police Station, Crime Nos.2299/2007 and 2349/2007 on the file of Madhuravoyal Police Station and Crime No.1309/2007 on the file of S.R.M.C. Police Station, for the offence under Sections 457, 380, 379 and 392, IPC. 2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order, passed the impugned order. 3. Challenging the said detention, 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 proceedings No.383/2007, dated 9.10.2007 passed by the second respondent herein, to quash the same and to direct the respondent to produce him, now detained in Central Prison, Chennai and set him at liberty. 4. The only contention advanced by the learned counsel for the petitioner is that there is a considerable 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 9.10.2007. A representation was made to the Government on 1.11.2007 and the same was received by it 2.11.2007. Remarks were called for from the detaining authority on 5.11.2007 and the same was received from the detaining authority on 12.11.2007. The file was circulated on 13.11.2007 and the same was considered by the Additional Secretary on 14.11.2007 and the Hon'ble Minister on 15.11.2007. However, the rejection order was prepared on 21.11.2007 with a delay of four days, excluding two public holidays. The 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. There is absolutely no explanation for the delay. https://hcservices.ecourts.gov.in/hcservices/ 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. 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 custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpl https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government Home, Prohibition and Excise Department Fort St.George, Chennai – 9. 2. The Commissioner of Police Greater Chennai, Chennai. 3. The Superintendent of Central Prison, Puzhal, Chennai. 4. The Public Prosecutor, High Court, Madras. 5. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. H.C.P.No.1582 of 2007. RSN(CO) RVL 08.02.2008 https://hcservices.ecourts.gov.in/hcservices/