IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.10.2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P. No.913 of 2007 Sathiya @ Sathiyanathan ..Petitioner Vs 1. The State of Tamil Nadu rep. by its Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai 600 009. 2. The District Magistrate and District Collector Vellore District at Vellore. ..Respondents Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. For Petitioner : Mr.T.R.Radhakrishnan For Respondents : Mr.N.R.Elango, Addl. Public Prosecutor O R D E R
(Made by P.D.DINAKARAN,J.)
The petitioner, aggrieved by the order of detention
dated 22.5.2007 made in Ref.No.C3.D.O.No.41/2007 passed by
the second respondent under the provisions of 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 of 1982) to detain him,
branding him as a Goonda, seeks to quash the order of
detention and to direct the respondents to produce him, who
is now confined at Central Prison, Vellore before this Court
and set him at liberty.
2. On the basis of a complaint lodged by one Sivakumar
that on 11.4.2007 at about 7.30 hours, the detenu waylaid
him at the point of pen knife and forcibly took Rs.150/-
from his shirt pocket and Wester wrist watch from his left
hand, and also threatened the public who came for his rescue
that they would be killed and hurled the bottles taken from
the nearby bunk shop in the road, which scattered all over
the roadside, making them to run on all sides seeking
shelter, which resulted in traffic dislocation, the detenu
was arrested and a case was registered in Crime No.221/2007
on the file of Arcot Town Police Station, for the offence
punishable under Sections 341, 392, 397, 427 and 506(ii),
3. The second respondent, taking note of the above case
as a ground case and twelve adverse case, ordered his
detention dubbing him as a goonda.
4. The learned counsel for the petitioner challenges
the impugned order of detention only on the ground of delay
in preparing the rejection order.
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 .
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, admittedly, objecting to the
order of detention dated 22.5.2007, a representation was
made on behalf of the detenu to the detaining authority on
22.6.2007, which was received by the Government on
26.6.2007. Parawar remarks from the sponsoring authority on
27.6.2007 and on receipt of the same on 4.7.2007, the
detaining authority sent it to the Government on 11.7.2007
and the same was received on the same day itself.
Thereafter, the file was submitted on 12.7.2007 and the same
was considered by the Under Secretary and Additional
Secretary on 13.7.2007. The file was considered by the
Minister on 16.7.2007. However, the rejection letter was
prepared on 25.7.2007, after a delay of nine days, which is
not properly explained. Even taking note of the intervening
holidays, viz., 21.7.2007 and 22.7.2007 (being Saturday
and Sunday), the delay of seven days in preparing the order
of rejection, is admittedly unexplained and inexcusable.
Thereafter, the order of rejection was sent on 25.7.2007 and
served on the detenu on 28.7.2007.
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. In the instant case, there is delay of seven days in
preparing the order of rejection on the detenu, as referred
to above, and the same, in our considered opinion, vitiates
the impugned order of detention. We are, therefore,
inclined to allow this petition.
In the result, the impugned 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.
1. The Secretary to Government
Prohibition & Excise Department
2. The District Magistrate and District Collector
Vellore District @ Vellore.
3. The Superintendent of Central Prison
4. The Public Prosecutor