IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.11.2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1289 of 2007 R.Balachander .. Petitioner Vs. 1. The State of Tamilnadu rep. by its Secretary Prohibition & Excise Department Fort St.George, Chennai-9. 2. The Commissioner of Police/ Detaining Authority Coimbatore City. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus to call for the records of the 2nd respondent in C.No.55/G/IS/2007, dated 16.07.2007 and quash the same thereby direct the detenu Ravi @ Yamaha Ravi, detained in Central Prison, Coimbatore to be produced before this Honourable Court and set the detenu at liberty and to award cost and adequate compensation. For Petitioner : Mr.V.Jeevagiridharan 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 second respondent herein clamped an order of detention as against the detenu – Ravi alias Yamaha Ravi, father of the petitioner, as the said authority arrived at the subjective satisfaction that the said detenu is a Drug Offender 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 16.7.2007 came to be passed by the second respondent on the basis of the ground case in Crime No.397 of 2007 on the file of Selvapuram Police Station for the offences punishable under Section 8(c) read with 20(b)(ii)(B) of NDPS Act. On 17.6.2007 at 1100 hours, when the Inspector of Police, Selvapuram Police Station along with the police party were keeping vigil on crime prevention and Narcotic Drug peddling, they saw the detenu selling some brown colour packets to people. On seeing the police party, the persons buying ran away, however the detenu was arrested and the contraband was seized. The samples were sent for chemical analysis and report reveals that the sample article sent was Ganja. 2.2. Apart from the above, the detaining authority also took note of six adverse cases pending against the detenu, viz., Crime Nos.89 of 2004 and 365 of 2006 on the file of Selvapuram Police Station for the offence under Section 20(b)(ii)(B) of the NDPS Act; Crime No.263 of 2004 on the file of Perur Police Station for the offence under Section 8(c) read with 20(b)(ii)(B) of the NDPS Act and 31 Cr.P.C.; Crime Nos.1542 of 2005 and 1034 of 2006 on the file of Bazaar Police Station for the offence under Section 20(b)(ii)(B) of NDPS Act; and Crime No.90 of 2006 on the file of NIB CID, Coimbatore for the offence under Section 8(c) read with 20(b)(ii) (A) of the NDPS Act. 2.3. The detaining authority, having satisfied that the detenu is habitually committing offences by stocking intoxicating drugs and thereby acting in a manner prejudicial to maintenance of public order, passed the impugned order. 3. Challenging the said detention, the son of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records of the second respondent in C.No.55/G/IS/2007, dated 16.7.2007, to quash the same and to direct the detenu, detained in Central Prison, Coimbatore, to be produced 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. https://hcservices.ecourts.gov.in/hcservices/ 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 . 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 16.7.2007. A representation was made to the Government on 24.7.2007 and the same was received by it on 26.7.2007. Remarks were called for from the detaining authority on 27.7.2007 and the remarks were obtained by the Government on 7.8.2007. The file was considered by the https://hcservices.ecourts.gov.in/hcservices/ Under Secretary and the Additional Secretary on 8.8.2007. The Hon'ble Minister for Public Works and Law considered the file on 9.8.2007, however the rejection letter was prepared only on 14.8.2007, viz., after three working days, excluding two public holidays. There is no convincing explanation on behalf of the State for the said delay. We find some force as well as substance in this contention. 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 in considering the representation 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 detention order dated 16.7.2007 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 https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Fort St.George, Chennai – 9. 2. The Commissioner of Police/ Detaining Authority Coimbatore City. 3. The Public Prosecutor High Court, Madras. 4. The Superintendent, Central Prison, Coimbatore. 5. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 1 cc To Mr.V.Jeevagiridharan, Advocate, SR.68928. H.C.P.No.1289 of 2007 PUR(CO) RVL 05.12.2007 https://hcservices.ecourts.gov.in/hcservices/