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.1434 of 2007 Syed Saleem ... Petitioner vs. 1. The Secretary to Government, Prohibition and Excise Dept., Secretariat, Chennai-9. 2. The District Collector & District Magistrate, Coimbatore District, Coimbatore. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus to call for the records relating to the Detention Order No.Cr.M.P.No.6/G/2007/E4, dated 14.6.2007 passed by the District Collector and District Magistrate, Coimbatore District, the second respondent herein and set-aside the same and direct the respondents to produce the body of the detenu Syed Saleem, S/o.Syed Ibrahim, aged about 27 years, the Detenu now confined in Central Prison, Coimbatore, before this Court and set him at liberty forthwith. For Petitioner : Mr.S.A.Sundaramurthy 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 14.6.2007, clamped on the detenu by the second respondent in C3/D.O.No.80/2007, branding him as a Goonda under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest https://hcservices.ecourts.gov.in/hcservices/ Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), the detenu himself has challenged the same in this writ petition. 2.On 02.04.2007, the complainant lodged a complaint before the Sub Inspector of Police, Tirupur Rural Police station alleging that on 02.04.2007 at about 7.30 a.m., when he was in his house, six persons forcibly entered into the house and one among them was wearing Khaki dress resembling police uniform. Under the pretext of enquiry, the accused asked the complainant to accompany them to police station. When the complainant said he would change his dress and come, the accused pushed him and his family into a room and brandished a pistol and ordered the complainant to part away with his valuables. The accused threatened to shoot them down if their order was not obeyed. Thus keeping the family members under pressure and threat, the accused decamped in their vehicle with the loot. Based on the complaint, a case was registered under Section 395 IPC and Sec.25 Indian Arms Act in Cr.No.218/2007. The investigating agency took up the case and continued with its usual formalities of visiting the scene of occurrence, drawing rough sketch etc. and on information nabbed one Rafeek. Based on his information, the detenu and his associates were arrested. 3. The detaining authority, taking note of the above ground case as well as three adverse cases, viz. in Tiruppur South Police Station Crime No.27 of 2007 for offences under Sections 302, 307 IPC and 27 of Indian Arms Act; in Palladam Police Station Crime No.54 of 2007 for the offence under Section 25(1)(b) of Indian Arms Act; and in Kamanaicken Palayam Police Station Crime No.66 of 2007 for the offence under Section 395 IPC and Section 25(1)(a) of Indian Arms Act, and having come to the subjective satisfaction that there is a compelling necessity to detain the detenu in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order and public peace, ordered his detention dubbing him as a Goonda. 4. The learned counsel for the petitioner challenges the impugned order of detention only on the ground of delay in considering the representation dated 23.06.2007 made on behalf of the detenu. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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. 6.1. Coming to the case on hand, admittedly, objecting to the order of detention dated 14.06.2007, a representation dated 23.06.2007 was made on behalf of the detenu, which was received by the Government on 26.06.2007. Remarks were called for from the detaining authority on 27.06.2007, who, in turn, called for parawar remarks on and the sponsoring authority, though received it on 2.7.2007, sent the same only on 7.7.2007, after a delay of five days, which is not properly explained. Thereafter, the remarks were https://hcservices.ecourts.gov.in/hcservices/ sent to the Government on and the file was circulated on 9.7.2007. The Under Secretary, the Additional Secretary and the Minister concerned dealt with the file on 11.7.07 and rejected the same. However, the rejection letter was prepared only on 16.7.2007, after a delay of five days and it was sent to the detenu on 17.7.07 and served on him on 18.7.2007. 6.2. From the above, it is evident that the sponsoring authority took his own time in sending the parawar remarks to the detaining authority and there is absolutely no satisfactory explanation for the same and there is also no explanation for the delay in preparing the rejection letter. 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 considerably delay while considering the representation of the detenu, 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 https://hcservices.ecourts.gov.in/hcservices/ Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sra To: 1. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9. 2. The District Collector & District Magistrate, Coimbatore District, Coimbatore. 3. The Superintendent, Central Prison, Coimbatore. 4. The Public Prosecutor, High Court, Madras. 5.The Joint Secretary to Govt. Public (Law & Order) Dept., Fort Saint,George, Chennai-9. AVM (CO) km/1.2. H.C.P.No.1434 of 2007 https://hcservices.ecourts.gov.in/hcservices/