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Judgment
Aruna Jagadeesan, J.—The Petitioner is the wife of the detenu. The Petitioner has come forward with this Habeas Corpus Petition, seeking
for the relief of quashing the impugned detention order dated 18.05.2011, slapped on her husband u/s 3(2) of the National Security Act 1980 (Act
65 of 1980).
Mr. R.Alagumani, theLearned Counsel for the Petitioner challenged the impugned detention order on two main grounds, viz. (i) the impugned
order of detention was passed without any subjective satisfaction and without any cogent material that the detenu is likely to be released on bail
and hence, the same is vitiated and (ii) as seen from the Proforma filed by the Respondents, there is unexplained delay of nineteen days in
considering and disposing of the representation of the detenu by the Government, which would vitiate the impugned detention order.
Per contra, Mr. P. Jyothi, the learned Additional Public Prosecutor would submit that there is No. illegality or infirmity in the impugned order of
detention and that the detaining authority has observed that there is possibility of the detenu coming out on bail by filing a bail application and if he
comes out on bail, he would further indulge in such activities in future, which will be prejudicial to the maintenance of the public order and hence,
there is a compelling necessity to detain the detenu in order to prevent him from indulging in such activities, which are prejudicial to the maintenance
of public order under the provisions of the National Security Act, 1980 (Central Act 65 of 1980) and as such, the detaining authority has rightly
passed the detention order.
The learned Additional Public Prosecutor would submit that six intermittent holidays intervened which has resulted in the delay in considering the
representation and that there was No. deliberate delay on the part of the authorities concerned to consider and dispose of the representation of the
detenu. It is contended that such a delay is not fatal to the impugned detention order, as the authorities concerned are dealing with the file right from
the date of receipt of the remarks.
We have given our careful and anxious consideration to the rival submissions put forward by theLearned Counsel on either side and thoroughly
scanned through the impugned detention order and the entire materials available on record.
The perusal of the impugned order of detention would reveal that the detenu has not filed any bail application. But, the detaining authority
without any cogent material available on record has arrived at the conclusion that there is a real possibility for the detenu to come out on bail by
filing a bail application after lapse of some time. No. details are given by the detaining authority about the alleged bail orders in similar cases
mentioning about the date of orders, the bail application number, whether bail order was passed in respect of co-accused in the same case or in
any other case similarly placed, the accused had been released on bail. In the absence of any such materials on record, on the basis of which, the
detaining authority could be satisfied that the detenu was likely to be released on bail, the mere ipse-dixit of the detaining authority is not sufficient
to sustain the order of detention.
At this juncture, it is relevant to refer the decision of the Hon''ble Apex Court in T.V. Saravanan alias S.A.R. Prasanna Venkatachariar
Chaturvedi v. State, through Secretary and Anr. reported in 2006 (1) MLJ (Crl) 539. The Hon''ble Apex court in the said decision held as
hereunder:
The Courts had rejected the bail applications moved by the Appellant and there was No. material whatsoever to apprehend that he was likely to
move a bail application or that there was imminent possibility of the prayer for bail being granted. The ""imminent possibility"" of the Appellant
coming out on bail is mere ipse dixit of the detaining authority unsupported by any material whatsoever. There was No. cogent material before the
detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference
has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not
sufficient to sustain the order of detention.
In Abdul Sathar Ibrahim Manik Vs. Union of India and others, , it is held as follows:
Where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware
of the fact that the detenu was in custody, and if so was there any material to show that there were compelling reasons to order detention in spite of
his being in custody. These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any
prejudicial activities and as such the detention order may not normally be necessary. Therefore, the law requires that these two tests have to be
satisfied in the case of such detention of a person in custody.
In yet another decision of the Honourable Supreme Court reported in Ramesh Yadav Vs. District Magistrate, Etah and Others, , the
Honourable Supreme Court has observed as follows:
Where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail he would
again carry on his criminal activities in the area, the same was not proper. If the apprehension of the detaining authority was true, the bail
application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the
ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be
passed.
In Chelladurai v. State of Tamil Nadu 2009 3 MLJ Crl 790 Mad this Court has observed that there is No. material on record to come to a
definite conclusion that there is real possibility of detenu coming out on bail by filing bail application and the conclusion of the detaining authority is
not based on any material and shows non application of mind. In yet another decision of this Court rendered in the case of D. Sivasakthi v. District
Collector and District Magistrate 2009 3 MLJ Crl 836-Mad, the same view was expressed and the detention was quashed on the said ground.
In a recent decision of the Honourable Supreme Court reported in 2011 3 MLJ Crl 422 SC Rekha v. State of Tamil Nadu, through Secretary
to Government and Anr. the Honourable Supreme Court has held that the detention order under the preventive detention law on the ground that in
similar case, the bail has been granted is illegal, when there is No. pendency of any bail application filed by the detenu. It is held as follows:
In the opinion of this Court, if details are given by the Respondent authority about the alleged bail orders in similar cases mentioning the date of
the orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the
co-accused was on the same footing as the case of the Petitioner, then, of course, it could be argued that there is likelihood of the accused being
released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as
that of the Petitioner, then the Petitioner is ordinarily granted bail. However, the Respondent authority should have given details about the alleged
bail order in similar cases, which has not been done in the present case. A mere ipso dixit statement in the grounds of detention cannot sustain the
detention order and has to be ignored.
In the opinion of this Court, there is a real possibility of release of a person on bail, who is already in custody provided that he has moved a
bail application, which is pending. It follows logically that if No. bail application is pending, then there is No. likelihood of the person in custody
being released on bail and hence, the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused
whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood
of the detenu being released o bail even though No. bail application of his is pending, since most Courts normally grant bail on this ground.
However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.
The principles laid down in the decisions cited supra are squarely applicable to the facts of the present case. The detaining authority before
passing the detention order must satisfy themselves that there is likelihood of the detenu being released on bail and that satisfaction ought to be
reached on cogent material. In this case also, the detaining authority in the absence of any cogent material available on record has inferred that the
detenu would be released on bail and if he is released on bail, he would indulge in such activities in future, which are prejudicial to the maintenance
of public order. There must be cogent material before passing the detention order that the detenu is likely to be released on bail. The inference
must be drawn from the available material on record and must not be the ipse-dixit of the officer passing the order of detention. Likelihood of
detenu''s moving an application for bail application or the pendency of the bail application filed by the detenu is not a cogent material and detention
order based on such material is liable to be quashed.
In so far as the contention raised by theLearned Counsel for the Petitioner as regards the delay in considering and disposing of the
representation of the detenu by the authorities is concerned, it is seen from the Proforma filed by the Respondents that the detenu sent his
representation to the Government and the same was received by the Government on 30.05.2011 and parawar remarks were called for on
31.05.2011 and reminders have been sent on 03.06.2011, 04.06.2011, 05.06.2011 and 07.06.2011 and parawar remarks have been received
on 12.06.2011.
It is also seen from the Proforma that the file was submitted on 14.06.2011, the authorities concerned, after the receipt of the remarks, dealt
with the remarks on 15.06.2011, 16.06.2011, 18.06.2011 and 20.06.2011 and the Hon''ble Minister for Law dealt with the remarks on
10.07.2011 and the Hon''ble Chief Minister considered the remarks on 16.07.2011 and the reply letter was sent to the detenu on 17.07.2011 and
ultimately the same was served on the detenu on 18.07.2011. Therefore, it is evident that at the second stage, there is a delay of nineteen days
after taking note of holidays intervened in considering and disposing of the representation of the detenu. But, there is absolutely No. explanation
whatsoever forthcoming from the authorities concerned for such unexplained delay.
At this Stage, it is relevant to refer to a few decisions of the Honourable Supreme Court and the same are extracted as follows:
(i) The Hon''ble Apex Court in Rashid Sk. Vs. State of West Bengal, has held as follows:
The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without
its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be
defeated. This 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.
(ii) The Honb''le Apex Court in Sri Ram Skukrya Mhatre Vs. R.D. Tyagi and Others, held that 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.
(iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and Ors. reported in 1989 SCC (Crl) 554 has held:The supine indifference, slackness
and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had
ultimately caused undue delay in the disposal of the Appellant''s representation by the government which received the representation 11 days after
it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention
of the Appellant illegal and constitutionally impermissible.
.......
When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with
reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation
with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the
delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may
invalidate the order of detention as having infringed the mandate of Article 22(5).
(iv) In Tara Chand Vs. State of Rajasthan and Others, and Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, , the Apex
Court held that
(v) In K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, , it is held as
follows:
That part, 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.
(v) But, in the latest another decision of the Hon''ble Apex Court reported in Rajammal Vs. State of Tamil Nadu and Another, , it is held that 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.
In Smt. Pebam Ningol Mikoi Devi Vs. State of Manipur and Others, it is held that there has been a delay of 7 days i.e. from 9.10.2009 to
16.10.2009 in forwarding the representation of the detenu to the Central Government and there has been No. explanation of reasons for this delay
given by the Respondents and hence, detention order is unsustainable.
At this juncture, it is relevant to refer to the decision brought to the notice of this Court reported in 1998 II CTC 78 Kumar v. State of Tamil
Nadu by Secretary to Government, Public (Law and Order) Department, wherein the Division Bench of this Court held that having regard to the
process at various stages the representation has to be dealt with and in view of the intervening holidays, the delay in considering the representation
is not unreasonable.
The right to make a representation against an order of detention is not only a constitutional right, but a statutory right as well. Since the
Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order
of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation
at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lost both its
purpose and meaning. The court in a large number of cases, has already laid down the principle in clear and specific terms that the representation
has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be
indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would totally affect the order
of detention and in that situation, continued detention would become bad.
this Court has repeatedly held that even the unexplained delay of three days is construed to be fatal to the detention order in the decision
reported in 2007 (2) MWN (Cr.) 145 (DB) Sumaiya v. The Secretary to Government, Prohibition and Excise Department, Government of Tamil
Nadu, Fort St. George, Chennai-9 and another. this Court has also held that the unexplained delay in the disposal of the representation would
definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. It is well
settled that there should not be supine indifference, slackness or callous attitude in considering the representation. In the decisions cited supra, the
unexplained delay of even three days is held to have vitiated the order of detention.
In the present case, the representation dated 24.5.2011 sent by the detenu was received by the Government on 30.05.2011 and parawar
remarks were called from the Collector on 31.05.2011 and after sending reminders on 3.06.2011 and 07.06.2011, parawar remarks were
received from the detaining authority on 10.06.2011. It was dealt with by the Under Secretary to Government, Public (Law and Order)
Department on 15.06.2011 and by the Additional Secretary to Government, Public (Law and Order) Department on 16.06.2011, by the
Secretary to Government, Public Department on 18.06.2011. Thereafter, the Deputy Secretary to Government, Law Department considered the
representation on 20.06.2011 and the Chief Secretary to Government on 20.06.2011. The Honourable Minister for Law considered the
representation on 21.06.2011. The Honourable Chief Minister considered the representation only on 16.07.2011. Though there is some
explanation for the delay at the first stage for calling remarks and receiving remarks, but at the second stage, i.e. consideration of the representation
by the Honourable Minister for Law and the Honourable Chief Minister, there is a delay of 26 days. Even after deducting six intervening holidays,
there is a delay of 19 days in considering the representation of the detenu by the Honourable Chief Minister. There is absolute No. explanation for
the delay which occurred on the file being dealt with by the Honourable Chief Minister.
At this juncture, it is relevant to state that a two Judges Bench in the decision reported in Mohinuddin alias Moin Master Vs. District
Magistrate, Beed and Others, declined to accept the explanation that the Minister was on Camp from the Head Quarters and held that as there
was long delay in the disposal of the representation by the State Government, further detention of the detenu was illegal. It is observed as follows:
It is somewhat strange that the State Government should have acted in such a cavalier fashion in dealing with the Appellant''s representation
addressed to the Chief Minister. We are satisfied that there was failure on the part of the Government to discharge its obligations under Article
22(5). The affidavit reveals that there were two representations made by the Appellant, one to the Chief Minister dated September 22, 1986 and
the other to the Advisory Board dated October 6, 1986. While the Advisory Board acted with commendable despatch in considering the same at
its meeting held on October 8, 1986 and forwarded its report together with the materials on October 13, 1986, there was utter callousness on the
part of the State Government to deal with the other representation addressed to the Chief Minister. It was not till November 17, 1986 that the
Chief Minister condescended to have a look at the representation. When the life and liberty of a citizen is involved, it is expected that the
Government will ensure that the constitutional safeguards embodied in Article 22(5) are strictly observed. We say and we think it necessary to
repeat that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the
personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is
largely the history of insistence on observance of the procedural safeguards.
Referring to the aforesaid decision, the Honourable Supreme Court in Rajammal Vs. State of Tamil Nadu and Another, reiterated that the
delay caused on account of any indifference or lapse in considering the representation will adversely affect further detention of the detenu and it is
not enough to say that the delay was short. In the said case, where there was delay in the file being dealt with by the Minister on account of his
tour, the Honourable Supreme Court held that merely stating that the Minister was on tour and he could pass orders only on 14.2.1998 is not a
justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved.
In the light of the principles laid down by the Honourable Supreme Court in the decisions cited supra, we are not in agreement with the views
expressed by the Division Bench of this Court reported in 1998 II CTC 78 Kumar v. State of Tamil Nadu by Secretary to Government, Public
(Law and Order) Department.
In so far as the case on hand is concerned, we have already pointed out that there is, totally, unexplained delay of nineteen days in considering
and disposing of the representation of the detenu and as such, the same would vitiate the impugned order of detention. It is needless to say that the
guarantee of earliest disposal of the representation set out in Article 22(5) of the Constitution of India has been infringed.
In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of
detention is vitiated and the same is liable to be quashed.
In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the Srcm 3rd Respondent in NSA. Detention
Order No. 02/2011 dated 18.05.2011 is hereby quashed and the detenu A.Mookaiah is directed to be set at liberty forthwith, unless his detention
is required in connection with any other case.