IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2007 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Habeas Corpus Petition No.1586 of 2007 Veni .. Petitioner Vs 1. The Commissioner of Police, Detaining Authority, Coimbatore City, Coimbatore. 2. The Secretary, Govt. of Tamil Nadu, Prohibition and Excise Dept., Fort St. George, Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. For Petitioner : Mr.C.Deivasigamani For Respondents : Mr.N.R.Elango Additional Public Prosecutor ORDER (Order of the Court was made by P.D.DINAKARAN,J.) The petitioner, mother of the detenu by name Shajakhan @ Raja, who has been detained at Central Prison, Salem, pursuant to the order of detention dated 26.3.2007 of the first respondent under the provisions 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) branding him as a Goonda, has filed this petition seeking writ of Habeas Corpus to call for the records in connection with the order of detention passed in proceedings C.No.23/G/2007, to quash the same and to direct the respondents to produce the detenu before this Court and set him at liberty. 2. The ground case, which led to the passing of the detention order, came to be registered in B.3 Kattoor Police Station Crime No.316 of 2007 for offences under Sections 392 r/w 397 on the complaint given by one Chinna Karuppan. According to the complainant, on 19.2.2007 at about 18.30 hours, when he was doing his fruit business, the detenu came and took some fruits and went without paying money and when the complainant https://hcservices.ecourts.gov.in/hcservices/ asked for the money, the detenu threatened him at the point of knife and took away Rs.375/- from him and also threatened the public who tried to apprehend him by brandishing the knife against them, which created fear in the minds of the public and they ran helter shelter for safer places resulting in the dislocation of traffic in that area. Based on the complaint, investigation was taken up and the detenu was arrested and later,produced before Judicial Magistrate No.II, Coimbatore, who remanded him to judicial custody. 3. The first respondent, taking note of the above ground case and finding three adverse cases, viz. on the file of same police station in Crime No.807/03 for the offence under Section 379, on the file of B-12 Ukkadam Police Station in Crime No.842/06 for the offence under Section 379 IPC and on the file of B-11 Saibaba Colony Police Station in Crime NO.189/07 for the offence under Sections 394, 506(ii) IPC., having satisfied that there is 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, ordered his detention dubbing him as a Goonda. 4. Since the learned counsel for the petitioner challenges the impugned order of detention only on the ground of delay in preparing the rejection order, we do not propose to go into other aspects, 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 26.3.2007, a representation was made on behalf of the detenu on 24.7.2007, which was received by the Government on 26.7.2007. Remarks were called for from the detaining authority on 27.10.2007 and the same were received on 7.8.2007. Thereafter, the file was circulated on 8.8.2007, on which date, the Under Secretary and the Additional Secretary considered the same. The Minister concerned dealt with the file on 9.8.2007 and rejected the same. However, the rejection letter was prepared only on 14.8.2007 with a delay of five days, which is not properly explained. Even if the intervening holidays, viz. 11.8.2007 and 12.8.2007 (being Saturday and Sunday), are excluded, there is delay of three days in preparing the rejection letter, which is admittedly unexplained and inexcusable. Thereafter, the rejection letter was sent on 16.8.2007 and served on the detenu on 20.8.2007. 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 https://hcservices.ecourts.gov.in/hcservices/ ‘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. In the instant case, there is delay of three days in preparing the rejection order, as referred to above, which, in our considered opinion, rendered the detention illegal and hence, we are inclined to allow this petition. In the result, the order of detention is set aside. 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 of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009. 2. The Commissioner of Police, Coimbatore City, Coimbatore. 3. The Superintendent Central Prison, Salem. 4. The Public Prosecutor, High Court, Madras. 5. The Joint Secretary to Government, Public (Law and Order) Department Fort St.George, Chennai -9. 1 cc To Mr.C.Deivasigamani, Advocate, SR.73472. H.C.P.No.1586 of 2007 PUR(CO) RVL 03.01.2008 https://hcservices.ecourts.gov.in/hcservices/