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S. Manikumar, J—Father of the detenu Kali @ Kalidoss, has filed this Habeas Corpus Petition, for quashing the order of detention passed by the Commissioner of Police, Madurai, dated 07.02.2015, in No. 18/BCDFGISSSV/2015, branding the Petitioner''s son, as Goonda, and confined at Central Prison, Madurai.
Detention order has been passed, on the basis of the solitary case alleged to have been registered on 19.01.2015, on the file of C2 Subramaniapuram Police Station in Crime No. 88 of 2015 under Sections 392 read with 397 and 506(ii) IPC. The Detaining Authority, after narrating the incident of the above said case, came to the conclusion, that it was necessary to detain Thiru. Kali @ Kalidoss, son of Selvam as a Goonda under Tamil Nadu Act 14 of 1982. At paragraph 5, the Detaining Authority has concluded as follows:
"5. I am aware that Thiru. Kali @ Kalidoss, S/o. Selvam, is in remand at the Central Prison, Madurai, in the ground case in C2 Subramaniapuram PS Cr. No. 88/2015 for offences under section 392 r/w.397, 506(ii) I.P.C. He had already obtained bail in the two adverse cases.
I am also aware that the bail application filed on behalf of Thiru. Kali @ Kalidoss, S/o. Selvam, in the above said ground case in C2 Subramaniapuram PS Cr. No. 88/2015 u/s. 392 r/w 397, 506(ii) I.P.C. before the JM No. IV, Madurai vide Crl.M.P. No. 212/2015 was dismissed on 20.01.2015. Another bail application filed on his behalf in the said ground case, before the District and Sessions Judge, Madurai vide Crl.M.P. No. 882/2015 and the same is pending for disposal.
I am also aware that the bail was granted by the Principal Sessions Judge, Madurai to one accused Tr. Gopi @ Gopinath concerned in the case in B4 Keeraithurai P.S. Cr. No. 588/2013 u/s. 392 r/w 397, 506(ii) I.P.C., vide Crl.M.P. No. 7131/2013 on 05.09.2013, in which offences committed were similar to the said ground case in C2 Subramaniapuram PS Cr. No. 88/2015.
Hence, I am satisfied that there is a real possibility of his (Thiru. Kali @ Kalidoss, s/o. Selvam) coming out on bail through the pending bail application in the ground case in C2 Subramaniapuram PS Cr. No. 88/2015 before the District and Sessions Court, Madurai, since in a similar case to the ground case, bail has been granted to accused Tr. Gopi @ Gopinath, by the court concerned. If he comes out on bail, he will indulge in such activities which are prejudicial to the maintenance of public order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the maintenance of public order. On the materials placed before me, I am fully satisfied that the said Thiru. Kali @ Kalidoss, s/o. Selvam is a "Goonda" and there is compelling necessity to detain him in order to prevent him from in future, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982."
Though the learned counsel for the petitioner challenged the impugned order on many grounds, inter alia has raised many contentions, we do not propose to go into all the grounds of challenge, since in our considered view, the point urged by the learned counsel for the petitioner that there is a delay in consideration of the representation merits acceptance.
On a perusal of the Proforma produced by the learned Additional Public Prosecutor, we find that the first representation dated 15.02.2015 was received by the Government on 18.02.2015 and remarks were called for, from the Detaining Authority on 19.02.2015. The remarks were received by the Government only on 24.02.2015. In between 19.02.2015 and 24.02.2015, there were 3 clear working days and 2 holidays. Thus, there is an unexplained delay of 3 days in sending the remarks. Likewise, the second representation dated 16.02.2015 was received by the Government on 11.03.2015 and remarks were called for, from the Detaining Authority on 16.03.2015. The remarks were received by the Government only on 23.03.2015. Even, if we give concession for 2 holidays, there were 5 clear working days, in between 16.03.2015 and 23.03.2015. Thus, there is an unexplained delay of 5 days in sending the remarks. At this juncture, this Court deems it fit to consider few decisions on the aspect of delay.
In Niranjansingh Vs. State of Madhya Pradesh, AIR 1972 SC 2215 : (1972) 2 SCC 542 : (1973) 1 SCR 691 , the Hon''ble 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."
In Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, AIR 1980 SC 1983 : (1980) 4 SCC 531 : (1981) SCC(Cri) 25 : (1981) 1 SCR 640 , the Hon''ble 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."
Again in The District Collector Vs. Smt. Shaik Hasmath Beebi, AIR 2001 SC 1681 : (2001) CriLJ 2193 : (2001) 5 JT 67 : (2001) 3 SCALE 485 : (2001) 5 SCC 401 : (2001) 3 SCR 142 : (2001) 2 UJ 1020 : (2001) AIRSCW 1745 : (2001) 3 Supreme 510 , the Hon''ble 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."
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 , the Hon''ble 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.
After extracting the ratio decided in Jayanarayan Sukul Vs. State of West Bengal, AIR 1970 SC 675 : (1970) CriLJ 743 : (1970) 1 SCC 219 : (1970) 1 SCC(Cri) 92 : (1970) 3 SCR 225 , Mahesh Kumar Chauhan alias Banti Vs. Union of India and others, AIR 1990 SC 1455 : (1991) 70 CompCas 782 : (1990) CriLJ 1507 : (1990) 2 Crimes 472 : (1990) 29 ECC 1 : (1990) 30 ECR 309 : (1990) 2 JT 592 : (1990) 1 SCALE 863 : (1990) 3 SCC 148 : (1990) 2 SCR 979 : (1990) 2 UJ 391 and Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Others, AIR 1989 SC 1861 : (1989) 2 Crimes 653 : (1990) 25 ECC 50 : (1989) 24 ECR 7 : (1989) 2 JT 579 : (1989) 1 SCALE 1581 : (1989) 3 SCC 173 : (1989) 3 SCR 191 , a Division Bench of this Court in Ramamurthy Vs. The State of Tamil Nadu, (2006) 4 CTC 181 : (2007) 1 LW(Cri) 15 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."
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. For reasons stated supra, the continuation of Detention Order is illegal.
In the result, the Habeas Corpus Petition is allowed and the impugned order of the second respondent in No. 18/BCDFGISSSV/2015 dated 07.02.2015, is quashed. The Detenu is ordered to be set at liberty, unless his presence is required in connection with any other case.