IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.1.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1748 of 2007 Tmt. Panchavarnam .. Petitioner Vs. 1. The State of Tamil Nadu rep. by its Secretary to Government Co-operation, Food and Consumer Protection Department Fort St.George, Chennai. 2. The District Collector and District Magistrate Madurai District Madurai 3. The Union of India rep. by its Secretary to Government Food and Consumer Protection Department Ministry of Consumer Affairs Public Distribution, Government of India New Delhi. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, call for the entire records leading to the detention of the petitioner's husband namely Selvapandian S/O. Ponnaiah Servai detained under Act 7/1980 vide detention order dated 29.11.2007 on the file of the 2nd respondent herein made in the CMP.No.6/2007(CS) dated 29.11.2007 quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Honourable Court and thereafter set him at liberty from Central Prison, Madurai. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Ms.R.Subadra Devi For Respondents : Mr.N.R.Elango Addl. Public Prosecutor for R1&R2 Mr.P.Kumaresan, ACGSC for R3 O R D E R (Order of the Court was made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu Selvapandian, husband of the petitioner, as the said authority arrived at the subjective satisfaction that the detenu is a Black Marketeer and he has to be detained under Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. 2.1. The order of detention dated 29.11.2007 came to be passed by the second respondent on the basis of the ground case said to have taken place on 23.11.2007. On 23.11.2007, when the Special Tahsildar, Civil Supplies, Madurai East along with his party took up checking pertaining to discrepancies in supply of essential commodities, on reliable information, they searched the tin shed in front of Door No.15H, 4th Santhu, Narasimmapuram, New Ramnad Road, Madurai and found 220 bags, weighing 50 kgs. each boiled rice intended for public distribution system were kept there and the detenu stated he is the owner of the said tin shed. The rice bags were seized and the and detenu was produced before the Inspector of Police, Civil Supplies Criminal Investigation Department for illegal hoarding of the rice intended for Public Distribution System. A case was registered in Madurai Civil Supplies Criminal Investigation Department Crime No.930 of 2007 under Section 6(4) of TNSC (RDCS) Order, 1982 read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. The detenu was arrested and remanded to judicial custody. 2.2. The detaining authority, having satisfied that the detenu is indulging in a manner prejudicial to the maintenance of supplies of commodities essential to the community in future, passed the impugned order. 3. Challenging the above-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 entire records leading to the detention of her husband – detenu, detained vide detention order dated 29.11.2007 on the file of the second https://hcservices.ecourts.gov.in/hcservices/ respondent made in C.M.P.No.06/2007, to quash the same and to consequently direct the respondents to produce the detenu before this Court and to set him at liberty from Central Prison, Madurai. 4. Heard the learned counsel for the petitioner and Mr.N.R.Elango, learned Additional Public Prosecutor for respondents 1 and 2. 5. The only contention advanced by the learned counsel for the petitioner is that there is considerable delay in considering the representation and the same has rendered the detention illegal. 6.1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point. 6.2. 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 . 6.3. 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. 6.4. 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. 6.5. 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. https://hcservices.ecourts.gov.in/hcservices/ 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. 7. In the instant case, the impugned order of detention came to be passed on 29.11.2007. A representation was made on behalf of the detenu on 7.12.2007. The said representation was received by the Government on 10.12.2007. Remarks were called for from the Detaining Authority on 12.12.2007. However, remarks were obtained from the detaining authority by the Government only on 4.1.2008. There is no explanation on the part of the detaining authority as to what has transpired between 12.12.2007 to 4.1.2008, viz., fourteen working days, excluding holidays. This delay 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. 8. 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.” 9. 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 https://hcservices.ecourts.gov.in/hcservices/ and it would render the continued detention impermissible and illegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476. The delay which stands unexplained is fatal to the detention attracting Article 22 of the Constitution of India and therefore, the petition must succeed and the same is ordered as prayed for. The detention order dated 29.11.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. Sasi Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Secretary to Government State of Tamil Nadu Co-operation, Food and Consumer Protection Department Fort St.George, Chennai. 2. The District Collector and District Magistrate Madurai District, Madurai 3. The Secretary to Government Union of India Food and Consumer Protection Department Ministry of Consumer Affairs Public Distribution, Government of India New Delhi. 4. The Superintendent, Central Prison, Madurai. 5. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 6. The Public Prosecutor, High Court, Madras. H.C.P.No.1748 of 2007 VSV(CO) SR/6.2.2008 https://hcservices.ecourts.gov.in/hcservices/