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.1614 of 2007 Mari ... Petitioner vs. 1. The State of Tamil Nadu, rep. by the Secretary to Govt., Prohibition and Excise Dept., St. Fort George, Chennai-9. 2. The District Magistrate & District Collector, Vellore District, Vellore. ... 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.T.R.Radhakrishnan For Respondents: Mr.N.R.Elango Additional Public Prosecutor ORDER (Order of this Court was made by P.D.DINAKARAN,J.) Aggrieved by the order of detention dated 29.10.2007, clamped on the petitioner/detenue by the second respondent in C3/D.O.No.96/2007, branding her as a Bootlegger 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), the detenue herself has challenged the order in this writ petition. 2. On 24.08.2007, when the Sub Inspector of Police and his police party were on their routine raids, they found the detenue https://hcservices.ecourts.gov.in/hcservices/ selling illicit arrack behind a bush. On seeing the police, persons who had gathered there to consume arrack disappeared and the detenue was arrested. Police secured the remaining arrack and vessels used for selling. A case was registered in Natrampalli Police Station Cr.No.716/2007 under Section 4(1)(aaa), 4(1)(i), 4 (1-A) of the Tamil Nadu Prohibition Act and the detenue was sent to judicial custody. Sample arrack was sent for chemical analysis and the Chemical Analyst has opined that the sample contained atropine, which is poisonous. 3. The detaining authority, taking note of the above ground case as well as ten adverse cases of similar nature on the file of same police station in Crime Nos.67/05, 244/05, 474/05, 563/05, 201/06, 757/06, 44/07, 369/07, 484/07 and 590/07 and having arrived at the subjective satisfaction that there is a compelling necessity to detain the detenu in order to prevent her from indulging in the activities which are prejudicial to the maintenance of public order and public health, ordered her detention dubbing her as a Bootlegger. 4. The learned counsel for the petitioner challenges the impugned order of detention only on the ground of delay in considering the representation dated 5.11.2007 made on behalf of the detenue. Hence, we do not propose to go into other aspects of the case, as the said ground has to succeed. 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 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. https://hcservices.ecourts.gov.in/hcservices/ 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. Coming to the case on hand, admittedly, objecting to the order of detention dated 29.10.2007, a representation dated 5.11.2007 was made on behalf of the detenue, which was received by the Government on 7.11.07 and remarks were called for from the detaining authority on 9.11.07, who, in turn, called for parawar remarks from the sponsoring authority on 13.11.2007. But, the sponsoring authority sent the remarks only on 21.11.2007, after a delay of eight days, which is not properly explained. Even if the intervening holidays, viz.,17.11.07 and 18.11.07 (being Saturday and Sunday) are excluded, there is delay of six days in sending the parawar remarks, which is admittedly unexplained and inexcusable. Thereafter, the report was sent and received by the Government on 27.11.2007. The file was circulated on 28.11.2007, on which date, the Under Secretary and the Additional Secretary considered it and the Minister concerned considered the same on 29.11.2007 and rejected it. The rejection letter was prepared on 3.12.2007, sent on 5.12.2007 and served on 7.12.2007. 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. As already stated, there is unexplained delay of eight days in sending the parawar remarks, referred to above, which has rendered the detention illegal and hence, the petition has to succeed on the ground. Accordingly, the order of detention is set aside and the Habeas Corpus Petition is allowed. The detenue is directed to be set at liberty forthwith unless her presence is required in connection with any other case. Sra Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Secretary to Government, Home, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9. 2. The District Collector & District Magistrate, Vellore District, Vellore. 3. The Superintendent, Central Prison, Vellore. 4. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 5. The Public Prosecutor, High Court, Madras. MDR(CO) SR/1.2.2008 H.C.P.No.1614 of 2007 https://hcservices.ecourts.gov.in/hcservices/