1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.11.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Habeas Corpus Petition (MD) No.854 of 2011 Jayalakshmi ... Petitioner Vs. 1.The District Collector and District Magistrate, Madurai. 2.The Secretary to Government Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai -9. ... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus, to call for the entire records relating to the impugned detention order in C.M.P.No.11/2011, dated 09.09.2011, passed by the first respondent and quash the same and direct the respondents to produce the body and person of the petitioner's husband viz., Minnalkodi, S/o.Perumal Thevar, aged about 52 years, set him at liberty now detained in Central Prison, Madurai. For Petitioner .. Mr.B.Kumar, Senior Counsel for Mr.A.Arunprasad For Respondents .. Mr.T.Mohan, Additional Public Prosecutor. ORDER (Order of the Court was made by K.N.BASHA, J.) The petitioner is the wife of the detenu by name Minnalkodi and she has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the detention order dated 09.09.2011, slapped on him branding him as “Goonda” as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum- grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982) read with the order issued by the Government in G.O.(D).No.124, Home, Prohibition and Excise (XVI) Department, dated 18.07.2011, under Sub-section (2) of Section 3 of the said Act. 2.Mr.B.Kumar, learned senior counsel appearing for the petitioner would contend that though there are several grounds raised by the petitioner, he is confining only to the prime https://hcservices.ecourts.gov.in/hcservices/ 2 ground to the effect of delay in considering the representation of the detenu. It is contended by the learned senior counsel for the petitioner that there is unexplained delay of 12 days in considering the representation of the detenu. It is pointed out by the learned senior counsel that as per the proforma produced by the learned Additional Public Prosecutor, representation was received on 20.09.2011 and remarks called for on 21.09.2011 and the remarks received only on 03.10.2011 and as such, there is a delay of 12 days. It is contended that even deducting 4 days for holidays, still there is a delay of 8 days. It is further pointed out by the learned senior counsel that the file was submitted to the Government on 07.10.2011 and as such, there is a delay of 4 days in sending file and if intermittent holidays viz., 2 days is deducted, still there is a delay of 2 days. It is also pointed out that the file was dealt with by the Deputy Secretary on 07.10.2011 and the representation was ultimately considered and orders passed only on 13.10.2011 and as such, there is a delay of four days and after deducting intermittent holidays of 2 days, still there is a delay of 2 days and as such, totally there is a delay of 12 days and there is no explanation at all from the respondents for such delay. 3.The learned senior counsel would contend that in view of a catena of decisions of the Hon'ble Apex Court, when there is no explanation for such delay, the detention order is vitiated and the same is liable to be quashed. The learned senior counsel would place reliance on the latest decision of the Principal Bench of this Court, dated 09.11.2011, in H.C.P.No.108 of 2011, wherein the said Division Bench referred to several decisions of the Hon'ble Apex Court and followed the decision of the Larger Bench of the Hon'ble Apex Court. 4.Per contra, the learned Additional Public Prosecutor would contend that the delay in respect of considering the representation is to be considered only from the date of confirmation of the detention order and not before the said date. In support of his contention, the learned Additional Public Prosecutor would place reliance on the decisions of the Hon'ble Apex Court in D.M.Nagarajan Vs. The Government of Karnataka and others, reported in 2011 (2) TLNJ 361 (Criminal). The learned Additional Public Prosecutor would also place reliance on yet another decision of the Hon'ble Apex Court in K.M.Abdulla Dunhi and another Vs. Union of India and others reported in (1991) 1 SCC 476. 5.We have given our careful and anxious considerations to the rival contentions put forward by either side and also perused the materials available on record, including the impugned order of detention. 6.At the outset, it is to be stated that there is an admitted delay of 12 days in considering the representation of the detenu. As pointed out by the learned senior counsel, the proforma produced by the learned Additional Public Prosecutor reveals that the representation of the detenu was received on https://hcservices.ecourts.gov.in/hcservices/ 3 20.09.2010 and the remarks called for on 21.09.2010 and thereafter, remarks received only on 03.10.2011 and as such, there is a delay of 12 days and even if we give concession to intermittent holidays, still there is a delay of 8 days. It is pertinent to note that though the remarks received on 03.10.2011, file was submitted only on 07.10.2011 and as such there is a further delay of four days and if we give concession to 2 holidays, still there is a delay of two days. Again, it is revealed that the Deputy Secretary has dealt with the file on 07.10.2011, but ultimately the order was passed, rejecting the representation of the detenu, only on 13.10.2011, which resulted a delay of 4 days and if we give concession for 2 holidays, still there is a delay of 2 days. As a result, there is a total delay of 12 days. The undisputed fact remains that there is absolutely no explanation whatsoever forthcoming from the respondents in respect of such delay. Such being the position, this Court has no hesitation to hold that the impugned order of detention is certainly vitiated. 7.At this juncture, it is relevant to refer few decisions of the Hon'ble Apex Court and the same are as follows: “(i) The Hon'ble Apex Court in Rashid sk. v. State of West Bengal reported in 1973 (3) SCC 476 has held as follows: “The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty – the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.” (ii) The Honb'le Apex Court in Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65 held that 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. (iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 has held: The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay https://hcservices.ecourts.gov.in/hcservices/ 4 in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. ....... When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5). (iv) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650, the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. (v) In yet another decision of the Hon'ble Apex Court reported in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu), it is held that 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 preempted 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 the 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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. (vi) In K.M.Abdulla Kunni v. Union of India, 1991 (1) SCC 476, it is held as follows:- “That part, it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” 8.The learned Additional Public Prosecutor placed strong reliance on the decision of the Hon'ble Apex Court in D.M.Nagarajan Vs. The Government of Karnataka and others, reported in 2011 (2) TLNJ 361 (Criminal) to contend that the delay in respect of considering the representation is to be considered only from the date of confirmation of the detention order. However, it is pertinent to note that the said decision was rendered by two Hon'ble Judges of the Hon'ble Apex Court and on the other hand, there is a decision of Larger Bench of the Hon'ble Apex Court, reported in 1999 (1) SCC 417 (Rajammal v. State of Tamil Nadu) cited supra and in that case, since the delay of 6 days have not been explained, the Larger Bench of the Hon'ble Apex Court quashed the order of detention. A Division Bench of the Principal Bench of this Court also placed reliance on the said decision and even by referring the decision of D.M.Nagarajan's case, as cited supra, in its order dated 09.11.2011, made in H.C.P.No.108 of 2011, followed the decision of the Larger Bench of the Hon'ble Apex Court and ultimately quashed the detention order on the ground of delay in considering the representation. 9.In view of the above settled position of law, we are unable to countenance the contention of the learned Additional https://hcservices.ecourts.gov.in/hcservices/ 6 Public Prosecutor. We are of the considered view that the principles laid down by a catena of decisions of the Hon'ble Apex Court, including the Larger Bench of the Hon'ble Apex Court, in the decision cited supra, are squarely applicable to the facts of this case, as in this case also there is unexplained delay of 12 days in considering the representation of the detenu and the same vitiates the detention order. 10.Accordingly, the detention order passed by the first respondent in C.M.P.No.11 of 2011, dated 09.09.2011, is hereby quashed and the detenu is set at liberty forthwith, unless his detention is required in connection with any other case. No costs. Sd/- Assistant Registrar(AE) /True Copy/ Sub-Assistant Registrar To: 1.The District Collector and District Magistrate, Madurai. 2.The Secretary to Government Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai -9. 3.The Superintendent, Central Prison, Madurai 4.The Joint Secretary to Government, Public (Law and Order) Fort Saint George, Chennai-9 5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai gcg rl/6c – 28.12.2011 Order in HCP (MD) No.854 of 2011 30.11.2011 https://hcservices.ecourts.gov.in/hcservices/