Chithra vs State of Tamil Nadu and Others

This Habeas Corpus Petition is filed, by the mother of the detenu, namely, Rajkumar, Son of Palanisamy, aged 22 years, to issue a Writ of Habeas Corpus, to call for the records, in Cr.M.P. No. 32/G/2014/E1 dated 12.08.2014, passed by the 2nd Respondent, detaining the detenu, under Section 3(1) 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 14/1982), branding him as a "Goonda", in the Central Prison, Coimbatore, and quash the same and to direct the Respondents to produce the body of the detenu and set him at liberty forthwith.

Even though, Mr.J.Ganesh, the learned counsel for the petitioner raised many grounds, in assailing the impugned order of detention, he confined his arguments only on the ground that there is unexplained delay in considering and disposing of the representation of the detenu, which would vitiate the impugned detention order.

According to the learned counsel for the petitioner, the representation, dated NIL, has been received by the Government on 18.09.2014 and remarks were called for on 19.09.2014. But, the remarks were received only on 27.10.2014, after a delay of 37 days. The learned counsel further submitted that though the file was dealt with by the Under Secretary and the Deputy Secretary on 28.10.2014, and the Minster has dealt with the said file of the detenu only on 05.11.2014, with a delay of 7 days and the same was rejected on 05.11.2014. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 18 intervening holidays and even after giving concession as to the intervening holidays, still there is a delay of 26 days in considering the representation, which remains unexplained. The unexplained delay in considering the representation of the detenu vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon''ble Apex Court in Rajammal Vs. State of Tamil Nadu and Another, AIR 1999 SC 684 : (1999) CriLJ 826 : (1998) 8 JT 598 : (1998) 6 SCALE 574 : (1999) 1 SCC 417 : (1998) 3 SCR 551 Supp : (1999) AIRSCW 139 : (1998) 9 Supreme 398 .

Per contra, Mr.C.Emalias, the learned Additional Public Prosecutor would submit that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. The learned Additional Public Prosecutor would further submit that there was no deliberate delay on the part of the authorities concerned to consider and dispose of the representation of the detenu. It is contended that such a delay is not fatal to the impugned detention order, as the authorities concerned are dealing with the file right from the date of receipt of the representation.

We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and also perused the impugned order of detention and the materials placed on record.

As per the proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu NIL, which was received by the Government on 18.09.2014, remarks have been called for from the Detaining Authority on 19.09.2014. But, the remarks have been received by the Government only on 27.10.2014, after a delay of 37 days. The file was dealt with by the Under Secretary and the Deputy Secretary on 28.10.2014, but dealt with by the Minister only on 05.11..2014, after a delay of 2 days and rejected on the same day. From the above it is clear that in between 18.09.2014 and 05.11.2014, there is a delay of 44 days. After giving concession to the 18 intervening holidays, namely, 20.09.2014, 21.09.2014, 27.09.2014, 28.09.2014, 02.10.2014, 03.10.2014, 04.10.2014, 05.10.2014, 11.10.2014, 12.10.2014, 18.10.2014, 19.10.2014, 22.10.2014, 25.10.2014, 26.10.2014, 01.11.2014, 02.11.2014 and 04.11.2014, still there is a delay of 26 days, which remain unexplained.

From the records produced, we find that no explanation has been offered for the delay of 26 days. It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.

At this Stage, it is relevant to refer to a few decisions of the Honourable Supreme Court and the same are extracted as follows:-

"(i) The Honourable Supreme Court in Rashid Sk. Vs. State of West Bengal, AIR 1973 SC 824 : (1973) CriLJ 656 : (1973) 3 SCC 476 : (1973) SCC(Cri) 376 , 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 Honourable Supreme Court in Sri Ram Skukrya Mhatre Vs. R.D. Tyagi and Others, AIR 1994 SC 1134 : (1994) CriLJ 63 : (1992) 3 SCC 65 Supp : (1992) 3 SLJ 201 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 Vs. Union of India and Others, AIR 1989 SC 1403 : (1990) 67 CompCas 335 : (1989) CriLJ 1447 : (1989) 2 Crimes 111 : (1989) 22 ECC 308 : (1989) 42 ELT 330 : (1989) 2 JT 34 : (1989) 1 SCALE 840 : (1989) 3 SCC 277 : (1989) 2 SCR 415 has held, thus:-

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).

(iv) In Tara Chand Vs. State of Rajasthan and Others, AIR 1980 SC 1361 : (1982) 52 CompCas 53 : (1980) CriLJ 1015 : (1980) 2 SCC 321 : (1980) 12 UJ 336 and Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, AIR 1986 SC 356 : (1986) CriLJ 493 : (1986) 2 Crimes 465 : (1977) LabIC 537 : (1985) 2 SCALE 1095 : (1986) 1 SCC 650 : (1986) 1 UJ 224 , the Honourable Supreme 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 Honourable Supreme Court reported in Rajammal Vs. State of Tamil Nadu and Another, AIR 1999 SC 684 : (1999) CriLJ 826 : (1998) 8 JT 598 : (1998) 6 SCALE 574 : (1999) 1 SCC 417 : (1998) 3 SCR 551 Supp : (1999) AIRSCW 139 : (1998) 9 Supreme 398 , 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 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 Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, AIR 1991 SC 574 : (1992) 73 CompCas 470 : (1991) CriLJ 790 : (1991) 1 Crimes 341 : (1991) 32 ECC 179 : (1991) 52 ELT 321 : (1991) 1 JT 216 : (1991) 1 SCALE 58 : (1991) 1 SCC 476 : (1991) 1 SCR 102 , 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."

The right to make a representation, against an order of detention is not only a constitutional right, but also a statutory right as well. Since the Constitution as also the Act, specifically, provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities, to whom the representation is made, to dispose of the representation, at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lost both its purpose and meaning. The court, in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would totally affect the order of detention and in that situation, continued detention would become bad.

This Court has repeatedly held that even the unexplained delay of three days is construed to be fatal to the detention order in the decision reported in 2007-2-MWN-Cr.-145-DB (Sumaiya Vs The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and another). This court has also held that the unexplained delay in the disposal of the representation would definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. It is well settled that there should not be supine indifference, slackness or callous attitude in considering the representation. In the decisions cited supra, the unexplained delay of even three days is held to have vitiated the order of detention.

In so far as the case on hand is concerned, we have already pointed out that there is, totally, unexplained delay of 26 days in considering and disposing of the representation of the detenu and as such, the same would vitiate the impugned order of detention. It is needless to say that the guarantee of earliest disposal of the representation set out in Article 22(5) of the Constitution of India has been infringed.

Therefore, in the light of the above said principles laid down by the Honourable Supreme Court and this Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.

In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.