IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.12.2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1440 of 2007 J.Amsa .. Petitioner Vs. 1. The District Collector and District Magistrate Villupuram District Villupuram 2. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai-9. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Mr.C.Johnson For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R (Order of the Court was made by P.D.DINAKARAN,J.) The first respondent herein clamped an order of detention as against the detenu Dhigil alias Jagadeesan, son of the petitioner, as the said authority arrived at the subjective satisfaction that the detenu is a Bootlegger and he has to be detained under Section 3(1) 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). https://hcservices.ecourts.gov.in/hcservices/ 2.1. The order of detention dated 5.9.2007 came to be passed by the first respondent on the basis of the ground case said to have taken place on 13.8.2007. On 13.8.2007 at about 1145 hours when the Inspector of Police, Prohibition Enforcement Wing, Tindivanam and his police party conducted prohibition raid, they found the detenu selling arrack. The detenu was arrested on the spot and the contraband was seized. A case was registered in Crime No.1187 of 2007 for the offences punishable under Section 4(1-A), 4(1)(aaa), 4(1)(i) of the Tamil Nadu Prohibition Act. On chemical analysis, it was found that the arrack is mixed with 3.18 mg. of atropine per 100 ml. arrack and the same is a poisonous substance. 2.2. Apart from the above, the detaining authority also took note of the five adverse cases pending against the detenu, viz., Crime Nos.252, 719, 951, 976 and 1015 of 2007 on the file of the Tindivanam Prohibition Enforcement Wing for the offences punishable under Sections 4(1-A) and 4 (1)(aa) of the Tamil Nadu Prohibition Act read with Rule 7 of the TNRS Rules. 2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order and public health, passed the impugned order. 3. Challenging the abovesaid detention, the mother of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records in proceedings No.C2/39170/2007, dated 5.9.2007 passed by the first respondent, to set aside the same and to direct the respondents to produce the detenu, now detained and confined in the Central Prison, Cuddalore, before this Court and to set him at liberty. 4. Heard the learned counsel for the petitioner and Mr.N.R.Elango, learned Additional Public Prosecutor for the respondents. 5. The only contention advanced by the learned counsel for the petitioner is that there is considerable delay in considering the representation and the same has rendered the detention illegal. 6.1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point. 6.2. 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/ 6.3. 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. 6.4. 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. 6.5. 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. 7. In the instant case, the impugned order of detention came to be passed on 5.9.2007. A representation was made on behalf of the detenu on 14.9.2007. The said representation was received by the detaining authority on 26.9.2007. Parawar remarks were called for from the sponsoring authority on 28.9.2007, however, the remarks of the sponsoring authority were received by the detaining authority only on 8.10.2007, viz., after a delay of five days, excluding five public holidays. This delay 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. https://hcservices.ecourts.gov.in/hcservices/ 8. 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.” 9. 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 . The delay which stands unexplained is fatal to the detention attracting Article 22 of the Constitution of India and therefore, the petition must succeed and the same is ordered as prayed for. The detention order dated 5.9.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi/atr To: 1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Collector and District Magistrate Villupuram District Villupuram. 3. The Joint Secretary to Government, Public (Law and Order) Fort St.George, Chennai -9. 4. The Superintendent, Central Prison, Cuddlore. 5. The Public Prosecutor High Court, Madras. H.C.P.No.1440 of 2007 JRG(CO) RVL 05.01.2008 https://hcservices.ecourts.gov.in/hcservices/