Kumar vs The State of Tamilnadu

P.D. Dinakaran, J.—The second respondent herein clamped an order of detention as against the detenu/petitioner, as the said authority

arrived at the subjective satisfaction that the said detenu is a Goonda 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 17.7.2007 came to be passed by the second respondent on the basis of the ground case in Crime No. 2146 of.

2007 on the file of Tambaram Police Station for the offences punishable under Sections 147, 148, 341, 336, 392 and 506(2) IPC, complaint of

which was given by one Sabu. On 23.6.2007, when the complainant was proceeding to1 meet his friend in his cycle, the detenu and his associates

suddenly surrounded him and demanded money. When the detenu and his associates took out knives and threatened the complainant, he raised

hue and cry. The detenu and his associates forcibly took away Rs. 3000/- from the pant pocket of the complainant. The complainant raised alarm

and on hearing the same, the nearby public came to his rescue. The accused picked up stones and pelted the same against them. The public seeing

the atrocious activities of the detenu ran for safer places out of fear of danger. Taking advantage of the panic situation, the detenu and his

associates escaped from the spot. Based on the complaint, the case was taken up for investigation and the detenu was arrested.

Apart from the above, the detaining authority also took note of two adverse cases pending against the detenu, viz., Crime Nos. 707 of 2001

and 1541 of 2007 on the file of Tambaram Police Station for the offence punishable under Sections 341, 427, 324 and 307, IPC and u/s 302 IPC

respectively.

The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order, passed the

impugned order.

Challenging the said detention, the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for

the records relating to the detention order in G.O. No. 341 of 2007, dated 17.7.2007 passed by the second respondent herein, to quash the same

and to direct the respondent to produce the detenu, now detained in Central Prison, Puzhal, Chennai and to set him at liberty.

Heard the 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 a considerable delay in considering the representation and

the same has rendered the detention illegal.

Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point.

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,

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, .

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, .

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 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 17.7.2007. A representation was made to the Government on

20.8.2007 and the same was received by it 21.8.2007. Remarks were called for from the detaining authority on 22.8.2007 and the remarks of the

detaining authority, after obtaining the remarks of the sponsoring authority, were received by the Government on 29.8.2007. The file was

considered by the Under Secretary, the Additional Secretary and the Hon''ble Minister on 31.8.2007. However, the rejection order was prepared

on 6.9.2007, viz., after a delay of four days, excluding two public holidays. The delay in considering the representation, 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.

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 it''s 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 oh 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 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 17.7.2007 is set aside. The detenu is directed to be set at liberty

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