IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.12.2007
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
H.C.P. No.1319 of 2007
G.Sumathi ..Petitioner
Vs.
1. The Secretary to Government
Home, Prohibition & Excise Department
Fort St.George
Chennai 9.
2. The District Collector and District Magistrate
Villupuram District
Villupuram. ..Respondents
PRAYER: Petition filed under Article 226 of the Constitution
of India to issue Habeas Corpus as stated therein.
For Petitioner : Mr.K.Gandhikumar
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, son of the petitioner, 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).
2.1. The order of detention dated 29.5.2007 was passed
on the basis of ground case that occurred on 30.4.2007 at
about 10.00 a.m. It is stated that on the said day, when one
Saravanan and his friends were having tea, the detenu came
there, started wordy altercation with Saravanan and demanded
money. When Saravanan refused, the detenu took Veecharuval
and threatened to kill him. When Saravanan further refused
to give money, the detenu attacked him with Veecharuval on
his neck and right leg and caused serious injury and
snatched Rs.650/- from Saravanan. When friends of Saravanan
intervened, the detenu picked up soda bottles and hurled the
same against the public. The public who were at the spot
noticing the atrocious activities ran for safer places out
of fear of danger to their lives and properties. On the
same day, the detenu was arrested in connection with three
cases in Crime Nos.251, 323 and 335 of 2007 on the file of
Villupuram Town Police Station.
2.2. The detaining authority also took not of three
adverse cases pending against the detenu, viz., Crime
Nos.520 of 2006, 251 and 323 of 2007 all on the file of
Villupuram Town Police Station for the offences punishable
under Sections 147, 148, 294(b), 341, 323, 324, 506(ii) and
307 IPC read with Section 3 of the Explosive Substances
Act, 1908.
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 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 C2/22763/2007, dated 29.5.2007 on the file of the
second respondent herein, to quash the same as illegal and
to consequently direct the respondents to produce the
detenu, now confined in 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 .
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 29.5.2007. A representation was made
to the Government on 23.8.2007 and the same was received by
it 28.8.2007. Remarks were called for from the detaining
authority on 29.8.2007 and the same was received by the
detaining authority on 7.9.2007. Parawar remarks were
called for from the sponsoring authority on 9.9.2007. But,
parawar remarks of the sponsoring authority were received by
the detaining authority only on 21.9.2007, viz., after a
delay of nine days, excluding three public holidays. The
delay, 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. There is
absolutely no explanation for this delay.
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 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
29.5.2007 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
To:
1. The Secretary to Government
State of Tamilnadu
Home, Prohibition and Excise Department
Fort St.George
Chennai 9.
2. The District Collector and District Magistrate
Villupuram District
Villupuram.
3. The Public Prosecutor
High Court
Madras.