Chinnapillai vs The State of Tamilnadu

P.D. Dinakaran, J.—The second respondent herein clamped an order of detention as against Palanisamy alias Kariyan Palanisamy, as the

said authority arrived at the subjective satisfaction that the said detenu is a Bootlegger and he has to be detained u/s 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).

The order of detention dated 24.4.2007 came to be passed by the second respondent on the basis of the ground case said to have taken place

on 9.4.2007 at about 10.00 Hours, when the police party, which was on raid, found the detenu selling ID arrack and arrested him and also seized

the contraband. A case was registered in Crime No.412 of 2007 on the file of the Kitchipalayam Police Station for the offences punishable under

Sections 4(1)(i), 4(1)(aa) and 4(1-A) of the Tamil Nadu Prohibition Act. On chemical analysis, the Doctor opined that the arrack is mixed with

5.2 mg. of atrophine per 100 ml. arrack and the same is harmful and injurious to human body. The order of detention is also supported with three

adverse cases against the detenu for the offences of alike nature.

Challenging the said detention, the wife of the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas

corpus to call for the records of the second respondent in C.M.P. No. 14/B.L./Salem City/2007, dated 24.4.2007, to quash the same and to

direct the detenu Palanisamy alias Kariyan Palanisamy detained at Central Prison, Salem to be produced before this Court and to set him at liberty.

Heard Mr. J. Saravanavel, learned Counsel for the petitioner and Mr. N.R. Elango, learned Additional Public Prosecutor for the respondents.

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 and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, .

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 Sri Ram Skukrya Mhatre Vs. R.D. Tyagi and

Others, .

6.4. Any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal, vide Tara

Chand Vs. State of Rajasthan and Others, and Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, .

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 Vs. State of Tamil Nadu and Another, .

In the instant case, the impugned order of detention came to be passed on 24.4.2007. A representation was made to the detaining authority and

the same was received by it on 6.6.2007 and remarks were called for on 7.6.2007. After obtaining the remarks of the Sponsoring Authority, the

file was considered by the Under Secretary and the Additional Secretary on 18.6.2007 and the Hon''ble Minister (P.W.D. and Law) considered

the file on 21.6.2007 and the rejection letter was prepared on the very same day. The rejection letter was sent to the detenu on 22.6.2007, but the

same was served on the detenu only on 28.6.2007. Even though 23.6.2007 and 24.6.2007 happen to be public holidays, still a delay of 4 days

exists. This delay 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. We fail to understand as to why the matter was delayed for four days (excluding public

holidays). There is absolutely no explanation for this delay.

At this juncture, a reference to the decision of the Apex Court in Kundanbhai Dulabhai Sheikh v. District Magistrate Ahmedabad :

1996CriLJ1981 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.

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 and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and

Others, .

The delay of four days which stands unexplained would fatalise 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 24.4.2007 is set aside. The detenu is directed to be set at

liberty forthwith unless his custody is required in connection with any other case.