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.1647 of 2007 Akbar Ali @ Sathali @ Vikram @ Deepak ... Petitioner vs. 1. State of Tamilnadu, rep. by its Secretary to Govt., Prohibition & Excise Dept., Fort St. George, Chennai-9. 2. The Commissioner of Police, Greater Chennai, Chennai. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus call for the records related to petitioner's detention under Tamil Nadu Act 15/82 vide detention order dated 05.10.2007 on the file of the second respondent herein made in proceedings No.381/2007, quash the same as illegal and consequently direct the respondents herein to produce the said petitioner namely Akbar Ali @ Sathali @ Vikram @ Deepak before this Honourable Court and set the petitioner at liberty from detention now detained in Central Prison, Puzhal, Chennai 66. For Petitioner : Mr.C.C.Chellappan For Respondents : Mr.N.R.Elango Additional Public Prosecutor ORDER (Order of this Court was made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the petitioner/detenu, as the said authority arrived at the subjective satisfaction that the petitioner/detenu is a Immoral Traffic Offender and has to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, https://hcservices.ecourts.gov.in/hcservices/ Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). 2.1.On the basis of the telephonic call made by one Johnson Raja to the Inspector of Police, Anti Vice Squad, Chennai Police, that the said Johnson Raja was approached by the detenu, a pimp and his broker for indulging in a Immoral Trafficking offence and was informed that he can take a girl of his choice if he comes near Medavakkam Chozhinganallur junction, the Inspector of police along with the police party proceeded to the spot at about 19.00 hours on 24.8.2007 and on being identified by the said Johnson Raja, the detenu was followed and arrested along with two others. Confessional statements were recorded and recoveries were made. The detenu along with others were brought to the police station and a case in Anti Vice Squad Police Station Crime No.74 of 2007 was registered for offences under Sections 3(2)(a), 4(1) and 5(1)(a) and 7(1) of the Immoral Traffic Prevention Act. The detenu and other accused were sent to Court for judicial remand. 2.2. Apart from the above, the detaining authority also took note of four adverse cases on the file of Anti Vice Squad Police Station in Crime Nos.86/2005, 14/2007, 15/2007 and 33/2007 registered for similar offences. 2.3.The detaining authority, having satisfied that there is compelling necessity to detain the detenu in order to prevent him from indulging in activities which are prejudicial to the maintenance of public health and order, ordered his detention dubbing him as a Immoral Traffic Offender. 3. Challenging the said detention, the detenu himself has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records relating to the detention order in proceedings No.381/2007 dated 5.10.2007 passed by the second respondent herein, to quash the same and to direct the respondents to produce him, now detained in Central Prison, Puzhal, Chennai, and set him at liberty. 4. 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. 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 . https://hcservices.ecourts.gov.in/hcservices/ 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 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. In the instant case, the impugned order of detention came to be passed on 5.10.07. A representation dated 31.10.2007 was made on behalf of the detenu, which was received by the Government on 1.11.07. Remarks were called for from the detaining authority on 2.11.2007 and the same was received from the detaining authority on 12.11.2007. The file was circulated on 13.11.2007 and the Additional Secretary considered the same on 14.11.2007. The Minister concerned dealt with the file on 15.11.2007 and rejected the representation. However, the file was received from circulation only on 21.11.2007, after a delay of six days and thereafter, the rejection letter was prepared, and sent and served on the detenu on 23.11.2007. Even if https://hcservices.ecourts.gov.in/hcservices/ the intervening holidays, viz. 20.11.2007 and 21.11.2007 (being Saturday and Sunday) are excluded, there is still a delay of four days in sending the file and preparing the rejection letter. The said 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. 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.” 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. Consequently, the order of detention is set aside. 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. https://hcservices.ecourts.gov.in/hcservices/ sra To: 1. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9. 2. The Commissioner of Police, Greater Chennai, Chennai. 3. The Superintendent, Central Prison, Puzhal, Chennai. 4. The Public Prosecutor, High Court, Madras. 5. The Joint Secretary to Government, Public [Law and Order] Department, Fort St. George, Chennai 9. H.C.P.No.1647 of 2007 akr[co] gp/4.2. https://hcservices.ecourts.gov.in/hcservices/