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.1537 of 2007 Reetha ... Petitioner vs. 1. State, rep. by the Secretary to Government, Home, Prohibition and Excise Dept., Fort Saint 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 to calling for the records of the second respondent, pertaining to the order made in C3/D.O.No.89/2007 dated 17.10.2007, in detaining the detenu under the Tamilnadu Act 14 of 1982 of a Bootlegger and quash the same and direct the respondent to produce the detenu, namely, Rajendran, Son of Manickam, who is detained at the Central Prison, Vellore, before this Hon'ble Court and set him at liberty. For Petitioner : Mr.O.S.Thilak Pasumbadiar For Respondents: Mr.N.R.Elango Additional Public Prosecutor ORDER (Order of this Court was made by P.D.DINAKARAN,J.) The order of detention dated 17.10.2007, clamped on the detenu by name Magendiran by the second respondent in C3/D.O.No.89/2007, branding him as a Bootlegger under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, https://hcservices.ecourts.gov.in/hcservices/ Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), is being challenged in this writ petition by the wife of the detenu. 2. On 24.09.2007, the complainant lodged a complaint before the Sub Inspector of Police, Tirupattur Town Police station alleging that on 24.09.2007 at about 7.00 a.m., he consumed the arrack sold by the detenu and on consumption, he developed burning sensation in stomach, throat and chest and he also felt blurring of his vision. Since the complainant felt something unusual was mixed in the arrack, which has affected his health immediately, he lodged the above said complaint. The Sub Inspector of Police registered a case in Cr.No.779/2007 under Sections 4(1)(i),(aaa), 4(1-A)ii of TNP Act r/w 328 IPC and proceeded to the place where the detenu was selling arrack. The detenu was found indulging in selling arrack and he was arrested and later, sent to Court for remand. The sample of arrack seized was found admixed with 6.1% mgms. Per 100 ml. of atropine. 3. The detaining authority, taking note of the above ground case as well as four adverse cases of similar nature on the file of same police station in Crime Nos.404/05, 1218/05, 389/06 and 253/07 and having arrived at 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 health, ordered his detention dubbing him 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 26.11.2007 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 India, (1991) 1 SCC 476 . https://hcservices.ecourts.gov.in/hcservices/ 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. Coming to the case on hand, admittedly, objecting to the order of detention dated 17.10.2007, a representation dated 26.11.2007 was made on behalf of the detenu, which was received by the Government on the same day and remarks were called for from the detaining authority, who, in turn, called for parawar remarks from https://hcservices.ecourts.gov.in/hcservices/ the sponsoring authority on 28.11.2007. But, the sponsoring authority sent the remarks only on 10.12.2007, after a delay of twelve days, which is not properly explained. Even if the intervening holidays, viz.,1.12.07, 2.12.07, 8.12.07 and 9.12.07 (being Saturdays and Sundays) are excluded, there is delay of eight days in sending the parawar remarks, which is admittedly unexplained and inexcusable. Thereafter, the report was sent and received by the Government on 11.12.2007. The file was circulated on 13.12.2007, and the Under Secretary, Additional Secretary and the Minister concerned considered the same on 14.12.2007 and rejected it. The rejection letter was prepared on 17.12.2007, sent on 18.12.2007 and served on 19.12.2007. 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 ‘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 https://hcservices.ecourts.gov.in/hcservices/ aside and the 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. Sra Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. 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 Government, Public (Law and Order), Fort St. George, Chennai-9. 5. The Public Prosecutor, High Court, Madras. Sa (co) dv/1.2. H.C.P.No.1537 of 2007 https://hcservices.ecourts.gov.in/hcservices/