IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.1.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1728 of 2007 Saravanan .. Petitioner Vs. 1. State of Tamilnadu rep. by its Secretary to Government Prohibition and Excise Department Chennai-600 009. 2. The Commissioner of Police Greater Chennai Egmore, Chennai 8. .. Respondents ----- Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. ----- For Petitioner : Mr.N.Ramu For Respondents: Mr.N.R.Elango Addl. Public Prosecutor ----- O R D E R (Made by P.D.DINAKARAN,J.) The petitioner is the detenu by name Saravanan, who has been clamped with an order of detention by the second respondent, on arriving at the subjective satisfaction that the said detenu is a Goonda and he has to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), seeks to call for the records relating to the https://hcservices.ecourts.gov.in/hcservices/ order of detention made in Ref.No.317/2007 dated 13.7.2007, to quash the same and the produce the detenu, who is now confined in Central Prison, Chennai, before this Court and set him at liberty. 2. The order of detention dated 13.7.2007 was passed on the basis of ground case in Crime No.167 of 2007 for alleged commission of offences under Sections 341, 332, 336, 427, 307 and 506(2) IPC. On 3.7.2007, the Sub Inspector of Police, Kasimedu Police Station, along with police party, proceeded on special duty to secure absconding accused, including the detenu herein. On receiving reliable information that the detenu and two other accused are available at S.N.Chetty Road, the police party rushed there. On seeing the police party, the detenu and others tried to escape from the spot. When the police party surrounded them, the detenu and others took their knives and tried to cut the Sub Inspector of Police on his neck, however, he escaped from the said attack. They also tried cut other police party. But, they escaped from the attack. On noticing the atrocious activities, the public also joined the police personnel in apprehending the detenu and others. Immediately, the detenu and others rushed to the nearby bunk shop, picked up cool drink bottles and hurled the same against the police personnel, which broken into pieces and scattered all over the road. The detenu and others created panic at the spot and the public fearing danger to their lives ran hither and thither resulting in traffic dislocation. Hence, a case was registered and the detenu was arrested. 3. Apart from the above, the detaining authority also took note of the eight adverse cases pending against the detenu in (i) Crime No.351/2002 on the file of N4 Fishing Harbour Police Station for the offence under Sections 332, 336, 307 and 506(ii) r/w 102 IPC; (ii) Crime Nos.25 and 28/2006 on the file of B5 Harbour Police Station for the offence under Section 379 and 511, IPC; (iii) Crime Nos.43/2007, 44/2007, 45/2007 and 48/2007 on the file of E3 Meenjur Police Station for the offence under Sections 447 and 379, IPC; and (iv) Crime No.35/2007 on the file of N2 Kasimedu Police Station for the offence under Sections 341, 323, 384 and 506(ii), IPC and having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order, passed the impugned order. 4. The learned counsel for the petitioner challenges the impugned order of detention mainly on the ground of delay in considering the representation made on behalf of the detenu. Hence, we do not propose to go into the other aspects of the case. https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 13.7.2007, a representation was made on behalf of the detenu on 29.10.2007, which was received by the Government on 30.10.2007. Remarks were called for from the detaining authority on 31.10.2007, which was received by the detaining authority on 2.11.2007. The detaining authority, in turn, called for parawar remarks from the sponsoring authority on 5.11.2007 and the same was received on 8.11.2007. The detaining authority sent it to the Government on 9.11.2007. The remarks was received by the Government on 12.11.2007. The file was circulated on 13.11.2007 and the same was considered by the Under Secretary and the Additional Secretary on 13.11.2007 itself. The Hon'ble Minister considered the file on 14.11.2007 and returned the same on 21.11.2007, with a delay of five days, excluding two public holidays. The rejection order was prepared on 21.11.2007 itself and sent to the detenu on 21.11.2007 itself. The delay in considering the representation, as indicated above, was highlighted by the learned counsel for the petitioner. There is no convincing reply on behalf of the State for the said delay. We find some force as well as substance in this contention. There is absolutely no explanation for the delay. 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.” https://hcservices.ecourts.gov.in/hcservices/ 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. The delay which stands unexplained is fatal to the detention order attracting Article 22 of the Constitution of India and therefore, the petition must succeed and the same is ordered as prayed for. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. ATR Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai-9. 2. The Commissioner of Police Greater Chennai, Egmore, Chennai-8. 3. The Superintendent Central Prison Chennai. 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. HCP No.1728 of 2007. https://hcservices.ecourts.gov.in/hcservices/