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S. Manikumar, J.—Wife of the detenu has filed this Habeas Corpus Petition for quashing the order of detention passed by the District Collector and District Magistrate, dated 12.11.2007, branding the petitioner''s husband Sahayaraj as Goonda and confined at Central Prison, Palayamkottai.
The detenu came to the adverse notice of the police in three cases. Two cases were registered against him in Crime Nos. 112 and 164 of 2006 u/s 379 IPC on the file of the Valliyoor Police Station and the third case was registered on 03.11.2007 in Crime No. 455 of 2007 under Sections 294(b) 323 and 506(2) IPC on the file of the same Police Station. The first two adverse cases are pending trial and the third adverse case is under investigation, when the order of detention was passed. The order of detention was passed on the basis of the ground case alleged to have caused on 04.11.2007 on the file of Valliyoor Police Station in Crime No. 456 of 2007 u/s 294(b) 353, 307, 506(h), IPC in which he has been remanded. The detenu has not preferred any bail application, till the detention authority passed the order of detention under the Tamil Nadu Act 14 of 1982.
The Detaining Authority after narrating the incident in the grounds case came to the conclusion that it was necessary to detain Mr. Sahayaraj, Son of Arputharaj as a goonda under Tamil Nadu Act 14 of 1982. At paragraph 6, the Detaining Authority concluded as follows:
I am aware that Thiru. Sahayaraj is in remand in Valliyoor police station crime number 456/2007 and he has not filed any bail application so far. I am also aware that there is real possibility of his coming out on bail by filing bail application for the above case since in similar cases bails are granted by the concerned court or higher courts. If he comes out on bail, he will indulge in further activities in future, which will be pre-judicial to the maintenance of the 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 pre-judicial to the maintenance of the public order. On the materials placed before me, I am satisfied that Thiru. Sahayaraj is a "Goonda" and there is a compelling necessity to detain him in order to prevent him from indulging in acts which are pre-judicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982.
Although the question of delay has not been raised in the affidavit, it is explicit from the chart produced by the State Counsel that no justifiable explanation is forthcoming for the delay in consideration of the representation of the detenu, therefore, we propose to deal with this question.
In this context, it would be useful to extract few decisions of the Supreme Court as well as this Court. In Niranjansingh Vs. State of Madhya Pradesh, , the Apex Court while emphasizing 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, , the Apex Court has held as follows:
and if there in 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, , the 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, , the 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 v. State of West Bengal, reported in 1970 (l) SCC 219 , Mahesh Kumar Chauhan alias Banti Vs. Union of India and others, and Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Others, , a Division Bench of this Court in Ramamurthy Vs. The State of Tamil Nadu, in paragraph 4 of the decision has held as follows:
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.
Coming to the facts of this case, the representation dated ''nil'' of the petitioner was received on 20.12.2007 and the remarks were called for on the same day itself. The Collector has received the representation from the Government on 24.12.2007 and the remarks were called for from the Sponsoring Authority on the same day. The remarks were received from the Sponsoring Authority on 26.12.2007 and the report was sent to the Government on the same day.
A perusal of the proforma shows that the Government have received the remarks from the Collector only on 09.01.2008. There is a considerable delay in receipt of remarks by the Government which has not been explained in the counter affidavit filed by the respondent. It is also evident from the proforma that though the Hon''ble Minister (PWD & Law) has dealt with the files on 14.01.2008, the rejection letter was prepared on 22.01.2008 and sent to the detenu on 23.01.2008. The delay of seven days between 14.01.2008 and 22.01.2008 has not been explained in the counter affidavit. The importance of personal liberty guaranteed under Article 21 of the Constitution of India, should not be dealt with lightly by the authorities by delaying the disposal of the representation. As the matter related to the personal liberty of an individual who has been detained and confined, without recourse to a regular trial, the representation has to be disposed of without any undue delay, otherwise it would amount to infraction of Article 22 (5) of the Constitution of India. The State should not adopt a leisurely attitude in considering the detenu''s representation.
The principles underlined in the above decisions are squarely applicable to the facts of this case. The delay of 14 days in sending the remarks to the Government and further delay of seven days between 14.01.2008 and 22.01.2008 respectively have not been explained in the counter affidavit filed by the respondents. In the absence of any explanation, we are constrained to hold that the order of detention is vitiated on account of unreasonable, unexplained delay in considering the representation.
In the result, the Habeas Corpus Petition is accordingly allowed and the order of detention in M.H.S. Confdl. No. 107 of 2007, dated 12.11.2007 passed by the first respondent is quashed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.