Alaguraja vs The Additional Secretary to Government

S. Manikumar, J.—The petitioner, who is the father of the detenu/A. Prabakaran, branded as a ''Black Marketer'' in detention order, H.S. (M) No. confidential No. 05./2014 dated 28.05.2014 by the 3rd respondent/District Magistrate and District Collector, Tuticorin District, has sought for a Writ of Habeas Corpus.

The detenu has come to adverse notice of the police in three cases. First case has been registered in Tuticorin Civil Supplies Criminal Investigation Department Crime No. 177/2012, under Section 6(4) of Tamilnadu Scheduled Commodities (Regulation of distribution by card system) Order 1982 read with Section 7(i)(a)(ii) of the Essential Commodities Act, 1955; second case has been registered in Tuticorin Civil Supplies Criminal Investigation Department Crime No. 72/2013, under Section 6(4) of Tamilnadu Scheduled Commodities (Regulation of distribution by card system) Order 1982 read with Section 7(i)(a)(ii) of the Essential Commodities Act, 1955 and the third case has been registered in Tuticorin Civil Supplies Criminal Investigation Department Crime No. 315/2013, under Section 6(4) of Tamilnadu Scheduled Commodities (Regulation of distribution by card system) Order 1982 read with Section 7(i)(a)(ii) of the Essential Commodities Act, 1955. In the first adverse, charge sheet has been filed and the case is pending trial. Adverse cases 2 and 3 are under investigation. Ground case has been registered in Tuticorin Civil Supplies Criminal Investigation Department Crime No. 118/2012, under Section 6(4) of Tamilnadu Scheduled Commodities (Regulation of distribution by card system) Order 1982 read with Section 7(i)(a)(ii) of the Essential Commodities Act, 1955, in which, the detenu has been remanded. On being satisfied that the detenu is indulging in activities, which are prejudicial to the maintenance of supplies of commodities essential to the community, the detaining authority, has clamped a detention order, on the detenu. At paragraph 4 of the grounds of detention, the Detaining Authority has concluded as follows:-

"On the materials placed before me, I am satisfied that Thiru. Prabakaran has been engaging in the smuggling of Public Distribution System rice meant for Public Distribution System, which is an essential commodity as defined in Essential Commodities Act, 1955 and that it was being hoarded, smuggled for sale at higher prices in Black Market with a view to make gain, is in contravention of the provisions of Essential Commodities Act, 1955. The activities of said Thiru. Prabakaran are prejudicial to the maintenance of supplies of commodities essential to the community. His activities might endanger social security and stability and also pose an imminent threat to social order. Therefore, the normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities, there is a compelling necessity to detain him under the Prevention of Black Marketing and Maintenance of Supplies Essential Commodities Act, 1980, to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of supplies of commodities essential to the community."

Among other grounds raised, learned counsel for the petitioner submitted that the order of detention has been passed on 28.05.2014. According to the petitioner, representation dated 22.08.2014 made to the respondents 1 and 2, has not been disposed of till 28.08.2014, the date on which, the present Habeas Corpus Petition has been filed.

Attention of this Court was invited to the averments made in the counter affidavit, wherein, with reference to the abovesaid ground, it is stated as follows:-

"It is submitted that the averment of the petitioner herein in Grounds Para G of the affidavit is denied as false, as the representation of the petitioner herein dated 22.08.2014 is properly attended to and a reply would be sent."

Proforma prepared by the Section Officer, Co-operation, Food and Consumer Protection Department, Chennai, dated 22.09.2014 shows that the representation dated 22.08.2014 has been received by the Government on 28.08.2014. Remarks have been called for on 01.09.2014 (29.08.2014 to 31.08.2014 are Government Holidays). Column No. 8 to 18 of the Proforma remain blank. We fail to understand that the detaining authority has made a bald statement that the representation dated 22.08.2014, is being attended to and that a reply would be sent. On more than one occasions, the Hon''ble Supreme Court held that the representation of the detenu should be considered as expeditiously as possible.

In the case on hand, the explanation offered by the 2nd respondent that the representation of the detenu is being attended to and that a proper reply would be sent, lacks total non application of mind, promptitude and expediency, required to be considered in the matter of considering the representation. Even the 2nd respondent has not indicated in the proforma, as to whether any reminder has been sent. Thus violation of the constitutional safeguard, under Article 22(5), is per se apparent. At this juncture, this Court deems it fit to consider few decisions on the aspect of delay.

(a). In Niranjansingh Vs. State of Madhya Pradesh, , the Apex Court while emphasising the need for explaining the delay held that:

"Where there has been an inordinate delay, it is incumbent on the state to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the provisions must be held to be illegal"

(b). In Rashid Sk. Vs. State of West Bengal, , the Hon''ble Supreme Court considered similar issue and held that any unexplained delay in disposal of the representation would be breach of constitutional imperative and it would render the continued detention impermissible and illegal and accordingly the Hon''ble Supreme Court 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.

(c). In Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, , the Apex Court has held as follows:

"There is a constitutional obligation under Article 22 (5) to consider the representation of the detenu as early as possible and if there is unreasonable and unexplained delay in considering such representation, it would have the effect of invalidating the detention of the detenu".

(d). In the decisions in Tara Chand Vs. State of Rajasthan and Others, and in Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, , the Hon''ble Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.

(e). In Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, , the Hon''ble Supreme Court held that,

"In view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government the further detention of the appellant must be held illegal. There was utter callousness on the part of the State Government to deal with the representation to the Chief Minister. There was no reason why the representation submitted by the appellant could not be dealt with by the Chief Minister with all reasonable promptitude and diligence. The explanation that he remained away from Bombay is certainly not a reasonable explanation."

(f). In Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Others, the Hon''ble Supreme Court has held as follows:-

"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 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).

(g). In K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, , it has been held as follows:-

.... 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.

(h). In Sri Ram Skukrya Mhatre Vs. R.D. Tyagi and Others, , the Hon''ble Supreme Court held thus:-

"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.

(i). In Rajammal Vs. State of Tamil Nadu and Another, , the Apex Court has held that the representation was received by the Secretary to the Government on 05.02.1998, the Government which received the remarks from different authorities submitted the relevant files before the under Secretary for processing it on the next day. Thereafter, the files were submitted to the Minister, who received it on tour. Finding that there was no valid explanation for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiated the detention.

(j). In the decision in Solomon Castro Vs. State of Kerala and Others, , the delay between 09.04.1999 and 28.04.1999 having not been explained on justifiable grounds in disposing the representation, hence on that ground, the order of detention was quashed.

(k). In the decision in Sherene Vs. The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai-8. and others, , this Court accepted the ground of unexplained delay in considering the representation between 04.08.1998 and 25.09.1998 to set aside the order of detention.

(l). Again in The District Collector Vs. Smt. Shaik Hasmath Beebi, , the Supreme Court has held as follows:

"Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article 22(5) in itself does not say to whom a representation could be made or who will consider the representation, but because of the language of Article 22(5) and because of the fact that an order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure of time taken by the appropriate authority for considering a representation, it should be considered and disposed of by the Government as soon as it is received."

(m). As per the decision in D. Karuppiah Vs. The Commissioner of Police and Another, , this Court accepted the ground of unexplained delay in considering the representation between 17.04.2002 and 04.05.2002 and the order of detention was set aside.

(n). After extracting the ratio decided in Jayanarayan Sukul Vs. State of West Bengal, Mahesh Kumar Chauhan alias Banti Vs. Union of India and others, and Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Others, , a Ramamurthy Vs. The State of Tamil Nadu, of the decision has held as follows:

"4. In the matter of preventive detention, while dealing with Article 22(5) of the Constitution of India, the Supreme Court has laid down an ordained principle, particularly in matters where the detenu has an independent constitutional right to make his representation to the authority concerned, to whom the detenu forwards his representation to consider the same within a reasonable time limit, it is the object of Article 22(5) of the Constitution of India that the representation of a detenu whose liberty is in peril and depraved should be considered and disposed of as expeditiously as possible. Otherwise, his continued detention will render itself impermissible and invalid as being violative of the constitutional obligation enshrined in Article 22(5) of the Constitution of India and if any delay occurs in the disposal of a representation, such delay should be explained by the appropriate authority to the satisfaction of the Court."

(o). In Sumaiya Vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9 and another, reported in 2007 (2) MWN (Cr.) 145 (DB), this Court held that an unexplained delay of three days in the disposal of the representation, made on behalf of the detenu, would be sufficient to set aside the detention order.

(p). In Kalaiselvi Vs. The State of Tamil Nadu , a Full Bench of this Court has held that it is well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity of making a representation and such right of the detenu, obviously, encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay, and the result of such representation should also be communicated without any such delay.

(q). In Fathima Sudha @ Esaki Sudha Vs. The District Collector and District Magistrate, Tirunelveli District, Tirunelveli, The Secretary to Government, Prohibition and Excise Department, Secretariat, Chennai - 600 009 and The Inspector of Police, Valliyoor Police Station, Tirunelveli District , the delay of seven days between 14.01.2008 and 22.01.2008 in communicating the rejection of representation was held as a vitiating factor to sustain the order of detention.

(r). In Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, , it has been held that the personal liberty of a person is protected, under Article 21 of the Constitution of India. As it is so sacrosanct and so high in the scale of constitutional values, there is an obligation on the part of the Detaining Authority to show that, while passing the impugned order of detention, the procedures established by law have been meticulously followed. The procedural safe guards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu.

(s). In Ummu Sabeena Vs. State of Kerala and Others, , the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression ''as soon as may be'', in Article 22(5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

(t). In the decision in Chellaswamy Vs. The District Collector and District Magistrate, The Secretary to the Government, Home, Prohibition and Excise Department and The Inspector of Police , out of the total delay of twelve days, five days were public holidays and remaining seven days being unexplained was held as a vitiating factor to sustain the order of detention.

(u). In Manjula Vs. State by the Commissioner of Police and The Secretary to Government Home, Prohibition and Excise Department , considering the above referred decisions and a decision of this Court in Sumaiya Vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9 and another, reported in 2007 (2) MWN (Cr.) 145 (DB), a Hon''ble Division Bench of this Court directed release of the detenue therein. In Sumaiya''s case, this Court held that the unexplained delay of even three days would vitiate continued detention.

(v). In Rashid Kapadia Vs. Medha Gadgil and Others, , the Hon''ble Supreme Court at paragraph 23, held as follows:-

It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the authority concerned as expeditiously as possible, is a constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the authorities on this aspect, except to take note of a couple of judgments where the principle is discussed in detail. They are: Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, and Harshala Santosh Patil v. State of Maharashtra (2006 (12) SCC 211 : 2007 (1) SCC (Cri) 680.

(w). In Tharmar Vs. The State of Tamilnadu and The Union of India, , a Hon''ble Division Bench of this Court after considering the decisions in Rajammal Vs. State of Tamil Nadu and Another, , K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, , Sri Ram Skukrya Mhatre Vs. R.D. Tyagi and Others, , Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Others, , Tara Chand Vs. State of Rajasthan and Others, , Rashid Sk. Vs. State of West Bengal, , Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, , and the unreported decisions made in HCP. No. 108/2011 dated 09.11.2011 and HCP. No. 1385/2000 dated 27.11.2010, and on the facts and circumstances of the case, held that four days delay in considering the representation, is a vitiating factor and accordingly, directed the detenu therein to be released, if not required in any other case.

(x). In Abdul Nasar Adam Ismail through Abdul Basheer Adam Ismail Vs. The State of Maharashtra and Others, , after considering a catena of decisions, the Hon''ble Apex Court, finding that there was a delay in considering the representation, held that the continued detention is illegal.

The reason for immediate consideration of the representation is too obvious to be stressed-the personal liberty of a person is at stake and any delay would not only be an indifferent act on the part of the Authorities, but would also be unconstitutional, violating the right enshrined under Article 22(5) of the Constitution of India of a detenu to have his representation considered with reasonable expedition. The unexplained delay in sending the remarks, in our considered view, would have the effect of vitiating the continued detention.

In the result, the Habeas Corpus Petition is allowed. In view of the delay in disposal of the representation of the detenu by the State Government, continued detention of the detenu is rendered illegal. We, therefore, direct that the detenu,

A. Prabakaran, be released forthwith, unless his presence is required in connection with any other case.