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.1676 of 2007 Senthilkumar @ Koolai Senthil ... Petitioner vs. 1. The District Magistrate & District Collector, Coimbatore District, Coimbatore. 2. The Secretary to Government Prohibition and Excise Dept., Secretariat, Fort St. George, Chennai-9. 3. The Inspector of Police, Tiruppur South Police Station, Coimbatore District. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. For Petitioner : Mr.G.Karthikeyan 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 11.10.2007, clamped on the petitioner/detenu by the first respondent in Cr.M.P.No.13/G/2007, branding him as a Goonda under Section 3(1) 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), is being challenged in this writ petition by the detenu https://hcservices.ecourts.gov.in/hcservices/ himself. 2. The ground case which led the detaining authority to pass the impugned order of detention is that on 1.9.2007 at about 11.45 a.m., due to previous enmity, the detenu along with others attacked one Arumugham and cut him with aruvals indiscriminately on various parts of his body. On seeing this, one Kumar, (complainant) and others shouted and the detenu and others apprehending at the crowd escaped from the spot. On the basis of the complaint, a case in Crime No.964/2007 on the file of Tiruppur South Police Station was registered against the detenu and others for offences under Sections 147, 148, 448 and 302 IPC. During investigation, the detenu was arrested and after interrogation, was sent to Court for judicial remand. 3. The detaining authority, taking note of the above ground case as well as two adverse cases on the file of same police station in Crime Nos.931/06 and 543/07 for various offences including the offence under Section 302 IPC, 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 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 24.10.2007 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 . 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. https://hcservices.ecourts.gov.in/hcservices/ 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 11.10.07, a representation dated 24.11.07 was made on behalf of the detenu, which was received by the Government on 29.10.07. Remarks were called for from the detaining authority on 30.10.07, who, in turn, called for parawar remarks from the sponsoring authority on 2.11.2007. But, the sponsoring authority sent the remarks to the detaining authority only on 19.11.2007, i.e., after a delay of seventeen days, which is not properly explained. Even if the intervening holidays, viz.,3.11.07, 4.11.07, 8.11.07, 10.11.07, 11.11.07, 17.11.07 and 18.11.07 (being Saturdays and Sundays as well as public holidays), are excluded, the delay of ten days in sending the parawar remarks to the detaining authority is admittedly unexplained and inexcusable. Thereafter, the report was sent to the Government on 20.11.07, on receipt of which, the file was circulated and on 21.11.07, it was considered by the Under Secretary, the Additional Secretary and the Minister concerned, who rejected the representation. Thereafter, the rejection letter was prepared on 23.11.07 and sent to the detenu on 26.11.07 and served on 28.11.2007. 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: https://hcservices.ecourts.gov.in/hcservices/ "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 inordinate delay on the part of the sponsoring authority in sending the parawar remarks called for by the detaining authority, which stands unexplained and hence, in our considered opinion, vitiates the impugned detention order. Accordingly, the order of detention is set 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. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sra https://hcservices.ecourts.gov.in/hcservices/ 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 Joint Secretary to Government, Public [Law and Order] Department, Fort St. George, Chennai 9. 5. The Public Prosecutor, High Court, Madras. 6. The Inspector of Police, Tiruppur South Police Station, Coimbatore District. H.C.P.No.1676 of 2007 cu[co] gp/4.2. https://hcservices.ecourts.gov.in/hcservices/