1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.04.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI Habeas Corpus Petition (MD) No.27 of 2011 Mohideen Fatima, W/o.Tajudeen ... Petitioner vs. 1.The State of Tamil Nadu, rep.by its Secretary to Government, Home, Prohibition and Excise (XVI)Department, Government of Tamil Nadu, Fort St.George, Chennai-600009. 2.The District Collector and District Magistrate, Tuticorin District, Tuticorin. 3.The Secretary, Advisory Board, Coovam House, Omanthurar Government Estate, Swami Sivanantha Salai, Chennai. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the connected with the detention order H.S.(M) Confdl.No.49/2010 of the Respondent No.2, dated 13.12.2010, quashing the same and direct the respondents to produce the body and person of the petitioner's husband Tajudeen, S/o.Mohamed Noorudeen, aged 28 years, now confined at Palayamkottai Central Prison, before this Court and set him at liberty forthwith. For Petitioner : Mr.S.M.A.Jinnah For Respondents : Mr.M.Daniel Manoharan, Addl.Public Prosecutor. O R D E R (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner, who is the wife of the detenu, has filed this petition challenging the order of detention, dated 13.12.2010, passed by the 2nd respondent under the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug https://hcservices.ecourts.gov.in/hcservices/ 2 Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, branding the petitioner's husband as a "Goonda" and directing him to be detained at the Central Prison, Palayamkottai. 2.Learned counsel appearing for the petitioner submitted that though many grounds have been raised in the petition, the petition is confined to the only ground of delay in considering the representation made by the detenu, dated 06.01.2011, received by the Government on 10.01.2011, which, according to the petitioner, vitiates the detention order. Learned counsel for the petitioner submitted that there is a delay of 15 days on the part of the detaining authority in furnishing the remarks. Learned counsel submitted that the delay occurred in furnishing the remarks remains unexplained and this unexplained delay vitiates the order of detention. 3.Learned Additional Public Prosecutor submitted that there were six holidays in between the date of calling for remarks and the remarks reaching the Government and hence there is no delay in the consideration and disposal of the representation of the detenu. 4.We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5.The learned Additional Public Prosecutor produced before us the pro-forma containing dates and events. It is seen from the said pro-forma, the representation of the detenu, dated 06.01.2011, had been received by the Government on 10.01.2011. Though the Government had called for remarks from the detaining authority on the next day, i.e. 11.01.2011, such remarks were received by the Government only on 01.02.2011, that too after a reminder being sent on 18.01.2011. Thus, there is 21 days delay in furnishing the remarks to the Government. Though it is submitted by the learned Additional Public Prosecutor that there were six holidays in between 11.01.2011 and 01.02.2011, still there were fifteen working days and there is no explanation for such a delay occurred in furnishing remarks to the Government. 6.In District Collector vs. S.K. Hasmath Beevi, reported in 2001(5) SCC 401, the Supreme Court has held as follows: "Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article 22(5) in itself does not say to whom a representation could be made or who will consider https://hcservices.ecourts.gov.in/hcservices/ 3 the representation, but because of the language of Article 22(5) and because of the fact that an Order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure of time taken by the appropriate authority for considering a representation, it should be considered and disposed of by the Government as soon as it is received." 7.In Rajammal Vs. State of Tamil Nadu, reported in 1999(1)SCC 417, the Apex Court has held that the representation was received by the Secretary to the government on 05.02.1998, the government which received the remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. Thereafter, the files were submitted to the minister, who received it on tour. Finding that there was no valid explanation for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiated the detention. 8.Contending that even a delay of three days in disposal of representation would have the effect of vitiating order of detention, learned counsel for the petitioner has drawn our attention to the decision of this Court in 2007(2)MWN(Cr.) 145 – Sumaya Vs. The Secretary to Govt., wherein the Division Bench has observed as under in paragraphs 5.3 and 5.4 as under: "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., Dist.Jail,l 1986 (1) SCC 650." We are in respectful agreement with the view taken by the Division Bench. 9.Law is well settled that since personal liberty of a person is involved in the preventive detention, the authorities concerned are required to deal with the representation with utmost dispatch and promptitude, without any unnecessary delay. Right to expeditious disposal of the representation by the State Government includes the right to communication of the result of the representation. The unexplained delay in the consideration and disposal of the representation would have the effect of vitiating the detention order and accordingly the detention order is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 4 10.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 13.12.2010, passed by the 2nd respondent in his proceedings H.S.(M)Confdl.No.49/2010, is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Deputy Registrar(Accounts) /True Copy/ Assistant Registrar To 1.The Secretary to Government, Home, Prohibition and Excise (XVI)Department, Government of Tamil Nadu, Fort St.George, Chennai-600009. 2.The District Collector and District Magistrate, Tuticorin District, Tuticorin. 3.The Secretary, Advisory Board, Coovam House, Omanthurar Government Estate, Swami Sivanantha Salai, Chennai. 4.The Superintendent of Police, Thoothukudi District 5.The Superintendent, Central Prison, Palayamkottai 6.The Joint Secretary to Govt, Public (Law and Order), Fort Saint George, Chennai-9 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai +One cc to Mr.S.M.A.Jinnah, Advocate, SR.No.15241 gb rl/9c – 25.5.2011 Order in H.C.P.(MD)No.27 of 2011 Dated:26.04.2011 https://hcservices.ecourts.gov.in/hcservices/