Madras High CourtS.Asanammal vs State Represented By on 5 December, 2012Author:M.JaichandrenBench:M.JaichandrenBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05/12/2012

CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
and
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

H.C.P (MD) No.1004 of 2012

S.Asanammal			  ..  Petitioner

vs.

1.State represented by
   the District Collector and
   District Magistrate,
   Tirunelveli,
   Tirunelveli District.

2.The Secretary to Government,
   Home, Prohibition and Excise Department,
   Secretariat, Chennai - 9.      ..   Respondents

	Petition filed underArticle 226of the Constitution of India to issue a
Writ of Habeas Corpus calling fro the records from the first respondent in
M.H.S.Confdl No.61/2012, dated 27.07.2012 by setting aside the said order of
detention passed by the first respondent and setting the detenu, Syad Ali, aged
about 30 years, S/o.Mydeenpitchai, at liberty, now detained in the Central
Prison, Palayamkottai.

!For petitioner ... Mr.K.Prabhu
^For respondents... Mr.C.Ramesh,
                    Addl.Public Prosecutor
	
:ORDER(Order of the Court was made by M.JAICHANDREN,J)
	This Habeas Corpus Petition has been filed to call for the records
relating to the order of the first respondent, dated 27.07.2012, made in
M.H.S.Confdl No.61/2012, and quash the same, and to produce the detenu, namely,
Syed Ali, son of Mydeenpitchai, aged about 30 years, confined in the Central
Prison, Palayamkottai, before this Court and to set him at liberty.2. The petitioner has stated that the first respondent had passed the
impugned detention order, dated 27.07.2012, under sub-section (1)  of Section 3
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 of 1982), read with
the order issued by the State Government, in G.O.(D) No.123, Home Prohibition
and Excise (XVI) Department, dated 18.7.2012, under sub-section (2) of Section 3
of the said Act,  directing the detention of Syed Ali, in the Central Prison,
Palayamkottai, terming him as a 'Goonda'.3. Even though various grounds had been raised by the petitioner, in the
present Habeas Corpus petition, while challenging the impugned detention order,
dated 27.07.2012, the learned counsel appearing on behalf of the petitioner had
submitted that the said detention order is liable to be set aside, merely on the
ground of delay in the disposal of the representation, dated 06.08.2012, made on
behalf of the detenu.4. It has also been pointed out that the representation made on behalf of
the detenu, dated 06.08.2012, was received, on 10.08.2012, and the remarks were
called for, on 13.08.2012.   The remarks had been received, on 13.8.2012.
Further, the rejection letter was prepared on 21.8.2012.   However, the
rejection letter was sent to the detenu, only after a delay of 30  days, out of
which 10 days i.e. 25.8.2012, 26.8.2012, 1.9.2012, 2.9.2012, 8.9.2012, 9.9.2012,
15.9.2012, 16.9.2012, 19.9.2012 and 22.9.2012 were government holidays. As such,
there has been an actual delay of 20 days in dealing with the representation
made on behalf of the detenu.5. The learned counsel for the petitioner had submitted that the
inordinate delay that had occurred in the disposal of the representation, made
on behalf of the detenu, would vitiate the detention order passed by the
Detaining Authority.6. The learned Additional Public Prosecutor, appearing on behalf of the
respondents, had submitted that the Habeas Corpus Petition, filed on behalf of
the detenu, is premature in nature.7. The learned counsel had relied on the decision of the Supreme Court, inD.M.Nagaraja Vs. Government of Karnataka and others, reported in (2011) 10 SCC
215, to state that there is no obligation on the part of the Detaining Authority
or the State Government to dispose of the representation made on behalf of the
petitioner, before the order of detention is approved.8. In a number of decisions, the Apex Court, as well as the various High
Courts, have made it clear that the delay in disposing of the representation
would vitiate the order of detention. Some of them are as follows:1.Binod Singh Vs. District Magistrate, Dhanbad(AIR 1986 SC 2090).2.Rivadeneyta Ricardo Agustin Vs. Government of the NCT of Delhi(1994
SCC (Cri) 354).3.Rajammal vs. State of Tamil nadu and another  (1999 SCC (Cri) 93).4.Senthil Kumar vs. District Magistrate and District Collector(2008 (2)
MLJ (Crl.) 1071).5.Jakkulin Vs. State of Tamil nadu (2008 (2) MLJ (Crl.) 1571).6.State of Tamil nadu rep. by its Secretary to Government, Home,
Prohibition and Excise (ix) Department, Secretariat, Chennai and another
(2009(1) MWN (Cr.) 400 (DB).8.1.In the decision, inPrabhu Dayal Deorah Vs. District Magistrate,
Kamrup and others, (AIR 1974 SC 183), the Supreme Court has held that the
constitutional requirement ofArticle 22(5)will not be satisfied, unless the
detenu is given the earliest opportunity to make a representation against the
detention. Thus, it is clear that the State has a concomitant and corresponding
duty to dispose of the representation, without any delay. Therefore, the Supreme
Court has repeatedly held that the State government is bound to consider the
representation made on behalf of the detenu, at the earliest possible, as it is
a mandatory obligation cast on it, by Clause (5) ofArticle 22of the
Constitution of India.8.2.InRamamurthy Vs. The State of Tamil Nadu(2006(4) CTC 181), this Court had
set aside the order of detention on the ground of delay in considering the
representation made on behalf of the detenu.8.3.In a decision of the Constitution Bench of the Supreme Court, inJayanarayan Sukul Vs. State of West Bengal, (1970 (1) SCC 219), it has been held
as follows:-"The reason for immediate consideration of the representation is too
obvious to be stressed. The personal liberty of a person is at stake. Any delay
would not only be an irresponsible act on the part of the appropriate authority
but also unconstitutional because the Constitution enshrines the fundamental
right of a detenu to have his representation considered and it is imperative
that when the liberty of a person is in peril, immediate action should be taken
by the relevant authorities."8.4. The Supreme Court, in Mahesh Kumar Chauhan aliasBanti Vs. Union of
India & Others, (1990) 3 SCC 148, while dealing with a case of preventive
detention, has observed that an undue and unexplained delay in the disposal of
the representation of the detenu is in violation ofArticle 22(5)of the
Constitution of India, rendering the detention order invalid.8.5.InRama Dhondu Borade Vs. V.K.Saraf, Commissioner of Police and
Others, (1989) 3 SCC 173, the Supreme Court has observed that a representation
of a detenu, whose liberty is in peril, should be considered and disposed of, as
expeditiously as possible. The continued detention will render itself
impermissible and invalid as being violative ofArticle 22(5)of the
Constitution of India. 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.8.6. In the decision, in Venkatesan @ Maya Venkatesan (2007(1) MLJ
(Crl.) 1176), it has been held that it is clear that the Government is bound to
explain the delay, if any, in disposing of the representation. It is not enough
to say that the delay was very short. The test is not the duration or range of
the delay, but how it is explained by the Authority concerned.8.7. In the decision, in Sumaiya Vs. The Secretary to Government,
Prohibition and Excise Department, Government of Tamilnadu, Fort St. George,
Chennai-9 and another 2007(2) MWN (Cr.) 145 (DB), this Court had held that an
unexplained delay of three days in the disposal of the representation, made on
behalf of the detenu, would be sufficient to set aside the detention order.8.8.InG.Kalaiselvi Vs. The State of Tamil Nadu(2007(5) CTC 657), a Full
Bench of this Court had held that it is by now well recognised that the
authorities concerned are duty bound to afford to the detenu an opportunity of
making a representation and such right of the detenu, obviously, encompasses the
corresponding duty that the representation must receive careful and expeditious
attention and should be disposed of without any unnecessary delay, and the
result of such representation should also be communicated without any such
delay.8.9. In Rekha Vs. State of Tamilnadu (2011(5) SCC 244), it has been held
that the personal liberty of a person is protected, underArticle 21of the
Constitution of India. As it is so sacrosanct and so high in the scale of
constitutional values, there is an obligation on the part of the Detaining
Authority to show that, while passing the impugned order of detention, the
procedures established by law have been meticulously followed. The procedural
safe guards are required to be zealously watched and enforced by the Courts of
law and their rigour cannot be allowed to be diluted on the basis of the nature
of the alleged activities of the detenu.8.10.InK.M.Abdulla Kunhi Vs. Union of India, (1991(1) SCC 476),  it had
been held that any  unexplained delay in the disposal of the representation made
on behalf of the detenu would be a breach of the constitutional imperative and
it would render the continued detention impermissible and illegal.8.11.In fact, this Court, in its order, dated 9.11.2011, in Smt.Sowdun
Bivi Vs. The State of Tamilnadu (H.C.P.No.108 of 2011), has clarified the
position relating to the issue regarding the consideration of the representation
made on behalf of the detenu, referring to the Full Bench decision of this
Court, inRajammal Vs. State of Tamil Nadu and another(1999 AIR SCW 139). Thus,
it is clear, from the catena of cases decided by the Supreme Court, that there
is an obligation cast on the Detaining Authority, as well as the State
Government, to consider the representation made on behalf of the detenu, as
early as possible, as per the mandate enshrined in Clause (5) ofArticle 22of
the Constitution of India.8.12. In Rashid sk. v. State of West Bengal, reported in, 1973 (3) SCC
476, the Supreme Court has held that the 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.8.13.InRam Sukrya Mhatre v. R.D.Tyagi and Others, 1992 Supp (3) SCC 65,
the Supreme Court has held thus;-"...the right to representation underArticle 22(5)of the Constitution of India
includes right to expeditious disposal not only by the State Government under
the relevant provision of the Statute, but also by the Central Government. But
in each case it is one of fact to be ascertained whether the Central Government
or State Government, as the case may be, has caused delay due to negligence,
callous inaction, avoidable re-tapism and undue protraction by the authorities
concerned. Expedition is the rule and delay defeats mandate ofArticle 22(5)of
the Constitution of India."8.14. In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others,
reported in 1989 SCC (Crl) 554, the Supreme Court has held that an avoidable and
unexplained delay in the disposal of the representation would result in
rendering the continued detention of the detenu illegal and constitutionally
impermissible.8.15.InTara Chand v. State of Rajasthan and Others, 1980 (2) SCC 321 and
Raghavendra Singh v. Superintendent, District Jail, Kanpur & Others, (1986) 1
SCC 650, the Apex Court has held that any inordinate and unexplained delay on
the part of the Government, in considering the representation, renders the
detention illegal.8.16.InRajammal v. State of Tamil Nadu & Others, 1999 (1) SCC 417, it
has been held as follows:-"It is a constitutional obligation of the Government to consider the
representation forwarded by the detenu without any delay. Though no period is
prescribed byArticle 22of the Constitution for the decision to be taken on the
representation, the words "as soon as may be" in clause (5) ofArticle 22convey
the message that the representation should be considered and disposed of at the
earliest.8.17.InK.M.Abdulla Kunhi v. Union of India, (1991) 1 SCC 476, it has
been held as follows:-".... 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."8.18.In a recent decision, inUmmu Sabeena Vs. State of Kerala, 2011 STPL
(Web) 999 SC, the Supreme Court has held that the history of personal liberty,
as is well known, is a history of insistence on procedural safeguards. The
expression 'as soon as may be', inArticle 22(5)of the Constitution of India,
clearly shows the concern of the makers of the Constitution that the
representation, made on behalf of the detenu, should be considered and disposed
of with a sense of urgency and without any avoidable delay.9. In the present case, the delay caused in the disposal of the
representation, dated 6.8.2012, made on behalf of the detenu, has not been
properly explained by the respondents.10. In such circumstances, in view of the decisions cited supra, the
detention order, dated 27.07.2012, passed by the first respondent, is set aside
and the Habeas Corpus Petition stands allowed. The detenu is directed to be set
at liberty, forthwith, unless his detention is required in connection with any
other case or cause.asvm

To1.The District Collector and
   District Magistrate,
   Tirunelveli,
   Tirunelveli District.2.The Secretary to Government,
   Home, Prohibition and Excise Department,
   Secretariat, Chennai - 9.3.The Additional Public Prosecutor,
   Madurai Bench of Madras High Court,
   Madurai.