R. Natarajan vs The Government of Tamilnadu

P.D. Dinakaran, J.—The second respondent herein clamped an order of detention as against S. Ganesan, son of Shanmugam, 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).

Challenging the abovesaid detention, the brother 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 Na.Ka.N.C.4/D.O./15/2007, dated 12.4.2007, to quash the same and to

consequently produce the detenu, now detained at the Central Prison, Cuddalore, and to set him at liberty.

Heard Mr. R. Sankarasubbu, 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 dated

4.5.2007 and the same has rendered the detention illegal.

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

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

Others, .

5.4. 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, .

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 Vs. State of Tamil Nadu and Another, .

In the instant case, the impugned order of detention came to be passed on 12.4.2007. A representation dated 4.5.2007 was made to the

detaining authority and the same was received by it on 7.5.2007 and remarks were called for on 8.5.2007. After obtaining the remarks of the

Sponsoring Authority on 17.5.2007, the file was considered by the Under Secretary on 18.5.2007 and by the Additional Secretary on 21.5.2007.

The Hon''ble Minister (P.W.D. and Law) dealt with the file on 22.5.2007 and the rejection letter was prepared on the 23.5.2007. The rejection

letter was sent to the detenu on 23.5.2007, but the same was served on the detenu only on 30.5.2007. Even though 26.5.2007 and 27.5.2007

happen to be public holidays, still a delay of 5 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 five 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 five 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 12.4.2007 is set aside. The detenu is directed to be set at

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