IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.1.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1312 of 2007 Somu @ Somasundaram .. Petitioner Vs. 1. The Secretary to Government Prohibition & Excise Department Secretariat, Chennai-9. 2. The District Collector and District Magistrate Kancheepuram District Kancheepuram. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus, call for the records in Connection with the order of detention passed by the Second Respondent dated 12.4.2007 in BDFGISSV No. 24/2007 against the Petitioner Somu @ Somasundaram, Son of Chandran , aged about 30 years, who is confined at Central Prison Puzhal, Chennai set aside the same and direct the respondents to produce the detenu before this Court. For Petitioner : Mr.V.Parthiban 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 petitioner/detenu, as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda 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 12.4.2007 was passed on the basis of a complaint given by one Chithirai. According to the complainant, on 18.3.2007 at about 7.00 pm, when he was returning home in his bicycle, the detenu waylaid him, took out a knife, placed the same over his neck and threatened to give whatever he was having. The complainant took out Rs.150/- and gave it to the detenu. The detenu threatened to kill the complainant, if he revealed about this incident to anybody. Two persons and some public who were at spot tried to catch the accused. The detenu took knife and threatened to kill if anybody approaches him. Due to that the general public scattered here and there and the place of occurrence was found with tension and panic. Based on the complaint given by the complainant, a case was registered in Crime No.234 of 2007 on the file of Madurantakam Police Station for the offences punishable under Section 341, 392 and 397 IPC. The case was taken up for investigation, the detenu was apprehended and remanded. 2.2. The detaining authority also took note of three adverse cases pending against the detenu, viz., Crime Nos.694 of 2004, 786 of 2005 and 9 of 2007 on the file of Madurantakam Police Station for the offences punishable under Sections 447, 294(b), 323, 147, 324, 448, 307 and 341 IPC. 2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order, passed the impugned order. 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 in connection with the order of detention passed by the second respondent dated 12.4.2007 in BDFGISSV No.24 of 2007 against the petitioner, who is confined in Central Prison, Puzhal, Chennai, to set aside the same and to direct the respondents to produce him 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. https://hcservices.ecourts.gov.in/hcservices/ 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 . 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 https://hcservices.ecourts.gov.in/hcservices/ 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 12.4.2007. A representation was made to the Government on 18.7.2007 and the same was received by it on 25.7.2007. Remarks were called for from the detaining authority on 26.7.2007 and the same was received by the detaining authority on 27.7.2007. Parawar remarks were called for from the sponsoring authority by the detaining authority on 30.7.2007 and the same were received by the detaining authority on 31.7.2007. The report of the detaining authority was sent to the Government on 1.8.2007, but the said report was received by the Government only on 6.8.2007, viz., after a delay of three days, excluding two public holidays. Thereafter, the file was considered by the Under Secretary on 8.8.2007, by the Additional Secretary on 9.8.2007 and the file was considered by the Hon'ble Minister on 10.8.2007. However, rejection letter was prepared only on 14.8.2007, viz., after a delay of two days, excluding two public holidays. Even though the rejection letter was sent to the detenu on 16.8.2007, it was served on the detenu on 20.8.2007, viz., after a delay of two days, excluding two public holidays. The delay, as indicated above, at different stages in dealing with the representation, 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. 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.” https://hcservices.ecourts.gov.in/hcservices/ 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 12.4.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. sasi/sra Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Secretariat, Chennai – 9. 2. The District Collector and District Magistrate Kancheepuram District, Kancheepuram. 3. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 4. The Superintendent, Central Prison, Puzhal. 5. The Public Prosecutor, High Court, Madras. H.C.P.No.1312 of 2007 RSU(CO) SR/10.1.2008 https://hcservices.ecourts.gov.in/hcservices/