1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.08.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.411/2011 Nallammal Petitioner Vs 1.The Secretary to Government of India, Ministry of Home Affairs, Department of Internal Security North Block, New Delhi 110001 2.The Secretary to Government, Public (Law and Order-F) Department, Secretariat, Chennai 600009 3.The District Collector and District Magistrate Madurai District 4.The Superintendent of Prison, Madurai Central Prison Madurai District Respondents Prayer:- This Habeas Corpus Petition is filed to issue a Writ of Habeas Corpus to call for records from the 3rd respondent in NSA.Detention Order No.01/2011 dated 18.05.2011, to set aside the same, to produce the body of and person of the petitioner's husband by name P.Soundrapandi, aged about 29 years, S/o.Pandi, now detained in the Central Prison, Madurai before this court and to set him at liberty forthwith. For Petitioner : Mr.R.Alagumani For Respondents : Mr.A.Uthaman, CGSC-R1 Mr.P.Jyothi, APP -RR2to4 ORDER (Order of the Court was made by ARUNA JAGADEESAN J.) The petitioner is the wife of the detenu. The petitioner has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the impugned detention order dated 18.05.2011, slapped on her husband under Section 3(2) of the National Security Act 1980 (Act 65 of 1980). 2. Mr.R.Alagumani, the learned counsel for the petitioner challenged the impugned detention order on two main grounds, viz. https://hcservices.ecourts.gov.in/hcservices/ 2 (i) the impugned order of detention was passed without any subjective satisfaction and without any cogent material that the detenu is likely to be released on bail and hence, the same is vitiated and (ii) as seen from the Proforma filed by the respondents, there is unexplained delay of nineteen days in considering and disposing of the representation of the detenu by the Government, which would vitiate the impugned detention order. 3. Per contra, Mr.P.Jyothi, the learned Additional Public Prosecutor would submit that there is no illegality or infirmity in the impugned order of detention and that the detaining authority has observed that there is possibility of the detenu coming out on bail by filing a bail application and if he comes out on bail, he would further indulge in such activities in future, which will be prejudicial to the maintenance of the public order and hence, there is a compelling necessity to detain the detenu in order to prevent him from indulging in such activities, which are prejudicial to the maintenance of public order under the provisions of the National Security Act, 1980 (Central Act 65 of 1980) and as such, the detaining authority has rightly passed the detention order. 4. The learned Additional Public Prosecutor would submit that six intermittent holidays intervened which has resulted in the delay in considering the representation and that there was no deliberate delay on the part of the authorities concerned to consider and dispose of the representation of the detenu. It is contended that such a delay is not fatal to the impugned detention order, as the authorities concerned are dealing with the file right from the date of receipt of the remarks. 5. We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the impugned detention order and the entire materials available on record. 6. The perusal of the impugned order of detention would reveal that the detenu has not filed any bail application. But, the detaining authority without any cogent material available on record has arrived at the conclusion that there is a real possibility for the detenu to come out on bail by filing a bail application after lapse of some time. No details are given by the detaining authority about the alleged bail orders in similar cases mentioning about the date of orders, the bail application number, whether bail order was passed in respect of co-accused in the same case or in any other case similarly placed, the accused had been released on bail. In the absence of any such materials on record, on the basis of which, the detaining authority could be satisfied that the detenu was likely to be released on bail, the mere ipse-dixit of the detaining authority is not sufficient to sustain the order of detention. 7. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court in T.V.Saravanan alias S.A.R.Prasanna Venkatachariar Chaturvedi v. State, through Secretary and Another reported in 2006 (1) MLJ (Crl) 539. The Hon'ble Apex court in the said decision held as hereunder: “The Courts had rejected the bail applications moved by the appellant and there was no material https://hcservices.ecourts.gov.in/hcservices/ 3 whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The “imminent possibility” of the appellant coming out on bail is mere ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention.” 8. In Abdul Sathar Ibrahim Mani Vs. Union of India (AIR- 1991-SC-2261), it is held as follows:- “Where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody, and if so was there any material to show that there were compelling reasons to order detention in spite of his being in custody. These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary. Therefore, the law requires that these two tests have to be satisfied in the case of such detention of a person in custody.” 9. In yet another decision of the Honourable Supreme Court reported in Ramesh Yadav Vs. District Magistrate, Etah and others (AIR-1986-SC-315), the Honourable Supreme Court has observed as follows:- “Where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area, the same was not proper. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be passed.” 10. In Chelladurai Vs. State of Tamil Nadu (2009-3-MLJ- Crl-790-Mad) this court has observed that there is no material on record to come to a definite conclusion that there is real possibility of detenu coming out on bail by filing bail application and the conclusion of the detaining authority is not based on any material and shows non application of mind. In yet another decision of this court rendered in the case of D.Sivasakthi Vs. District Collector and District Magistrate (2009-3-MLJ-Crl-836- https://hcservices.ecourts.gov.in/hcservices/ 4 Mad), the same view was expressed and the detention was quashed on the said ground. 11. In a recent decision of the Honourable Supreme Court reported in 2011-3-MLJ-Crl-422-SCC (Rekha Vs. State of Tamil Nadu, through Secretary to Government and another) the Honourable Supreme Court has held that the detention order under the preventive detention law on the ground that in similar case, the bail has been granted is illegal, when there is no pendency of any bail application filed by the detenu. It is held as follows:- “7. In the opinion of this Court, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipso dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored. 24. In the opinion of this Court, there is a real possibility of release of a person on bail, who is already in custody provided that he has moved a bail application, which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail and hence, the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released o bail even though no bail application of his is pending, since most Courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.” 12. The principles laid down in the decisions cited supra are squarely applicable to the facts of the present case. The detaining authority before passing the detention order must satisfy themselves that there is likelihood of the detenu being released on bail and that satisfaction ought to be reached on cogent material. In this case also, the detaining authority in the absence of any cogent material available on record has inferred that the detenu would be released on bail and if he is released on bail, he would https://hcservices.ecourts.gov.in/hcservices/ 5 indulge in such activities in future, which are prejudicial to the maintenance of public order. There must be cogent material before passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse-dixit of the officer passing the order of detention. Likelihood of detenu's moving an application for bail application or the pendency of the bail application filed by the detenu is not a cogent material and detention order based on such material is liable to be quashed. 13. In so far as the contention raised by the learned counsel for the petitioner as regards the delay in considering and disposing of the representation of the detenu by the authorities is concerned, it is seen from the Proforma filed by the respondents that the detenu sent his representation to the Government and the same was received by the Government on 30.05.2011 and parawar remarks were called for on 31.05.2011 and reminders have been sent on 03.06.2011, 04.06.2011, 05.06.2011 and 07.06.2011 and parawar remarks have been received on 12.06.2011. 14. It is also seen from the Proforma that the file was submitted on 14.06.2011, the authorities concerned, after the receipt of the remarks, dealt with the remarks on 15.06.2011, 16.06.2011, 18.06.2011 and 20.06.2011 and the Hon'ble Minister for Law dealt with the remarks on 10.07.2011 and the Hon'ble Chief Minister considered the remarks on 16.07.2011 and the reply letter was sent to the detenu on 17.07.2011 and ultimately the same was served on the detenu on 18.07.2011. Therefore, it is evident that at the second stage, there is a delay of nineteen days after taking note of holidays intervened in considering and disposing of the representation of the detenu. But, there is absolutely no explanation whatsoever forthcoming from the authorities concerned for such unexplained delay. 15. At this Stage, it is relevant to refer to a few decisions of the Honourable Supreme Court and the same are extracted as follows:- “(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 https://hcservices.ecourts.gov.in/hcservices/ 6 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. (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 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.” https://hcservices.ecourts.gov.in/hcservices/ 7 (v) But, in the latest another decision of the Hon'ble Apex Court reported in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu), it is held that 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. 16. In Pebam Ningol Mikol devi Vs. State of Manipur and others (2010-9-SCC-618) it is held that there has been a delay of 7 days i.e. from 9.10.2009 to 16.10.2009 in forwarding the representation of the detenu to the Central Government and there has been no explanation of reasons for this delay given by the respondents and hence, detention order is unsustainable. 17. At this juncture, it is relevant to refer to the decision brought to the notice of this court reported in 1998-II- CTC-78 (Kumar Vs. State of Tamil Nadu by Secretary to Government, Public (Law and Order) Department), wherein the Division Bench of this Court held that having regard to the process at various stages the representation has to be dealt with and in view of the intervening holidays, the delay in considering the representation is not unreasonable. 18. The right to make a representation against an order of detention is not only a constitutional right, but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lost both its purpose and meaning. The court in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would totally affect the order of detention and in that situation, continued detention would become bad. 19. This Court has repeatedly held that even the unexplained delay of three days is construed to be fatal to the detention order in the decision reported in 2007 (2) MWN (Cr.) 145 (DB) Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another. This court has also held that the https://hcservices.ecourts.gov.in/hcservices/ 8 unexplained delay in the disposal of the representation would definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. It is well settled that there should not be supine indifference, slackness or callous attitude in considering the representation. In the decisions cited supra, the unexplained delay of even three days is held to have vitiated the order of detention. 20. In the present case, the representation dated 24.5.2011 sent by the detenu was received by the Government on 30.05.2011 and parawar remarks were called from the Collector on 31.05.2011 and after sending reminders on 3.06.2011 and 07.06.2011, parawar remarks were received from the detaining authority on 10.06.2011. It was dealt with by the Under Secretary to Government, Public (Law and Order) Department on 15.06.2011 and by the Additional Secretary to Government, Public (Law and Order) Department on 16.06.2011, by the Secretary to Government, Public Department on 18.06.2011. Thereafter, the Deputy Secretary to Government, Law Department considered the representation on 20.06.2011 and the Chief Secretary to Government on 20.06.2011. The Honourable Minister for Law considered the representation on 21.06.2011. The Honourable Chief Minister considered the representation only on 16.07.2011. Though there is some explanation for the delay at the first stage for calling remarks and receiving remarks, but at the second stage, i.e. consideration of the representation by the Honourable Minister for Law and the Honourable Chief Minister, there is a delay of 26 days. Even after deducting six intervening holidays, there is a delay of 19 days in considering the representation of the detenu by the Honourable Chief Minister. There is absolute no explanation for the delay which occurred on the file being dealt with by the Honourable Chief Minister. 21. At this juncture, it is relevant to state that a two Judges Bench in the decision reported in AIR-1987-SC-1977 (Mohinuddin Vs. District Magistre, Beed and others) declined to accept the explanation that the Minister was on Camp from the Head Quarters and held that as there was long delay in the disposal of the representation by the State Government, further detention of the detenu was illegal. It is observed as follows:- “6. It is somewhat strange that the State Government should have acted in such a cavalier fashion in dealing with the appellant's representation addressed to the Chief Minister. We are satisfied that there was failure on the part of the Government to discharge its obligations under Art.22(5). The affidavit reveals that there were two representations made by the appellant, one to the Chief Minister dated September 22, 1986 and the other to the Advisory Board dated October 6, 1986. While the Advisory Board acted with commendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report together with the materials on October 13, 1986, there was utter callousness on the part of the State Government to deal with the other representation addressed to the Chief https://hcservices.ecourts.gov.in/hcservices/ 9 Minister. It was not till November 17, 1986 that the Chief Minister condescended to have a look at the representation. When the life and liberty of a citizen is involved, it is expected that the Government will ensure that the constitutional safeguards embodied in Art.22(5) are strictly observed. We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of the procedural safeguards.” 22. Referring to the aforesaid decision, the Honourable Supreme Court in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu) reiterated that the delay caused on account of any indifference or lapse in considering the representation will adversely affect further detention of the detenu and it is not enough to say that the delay was short. In the said case, where there was delay in the file being dealt with by the Minister on account of his tour, the Honourable Supreme Court held that merely stating that the Minister was on tour and he could pass orders only on 14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Art.21 of the Constitution is involved. 23. In the light of the principles laid down by the Honourable Supreme Court in the decisions cited supra, we are not in agreement with the views expressed by the Division Bench of this court reported in 1998-II-CTC-78 (Kumar Vs. State of Tamil Nadu by Secretary to Government, Public (Law and Order) Department). 24. In so far as the case on hand is concerned, we have already pointed out that there is, totally, unexplained delay of nineteen days in considering and disposing of the representation of the detenu and as such, the same would vitiate the impugned order of detention. It is needless to say that the guarantee of earliest disposal of the representation set out in Art.22(5) of the Constitution of India has been infringed. 25. In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed. 26. In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the 3rd respondent in NSA.Detention Order No.01/2011 dated