AI Structured Summary
Not yet generated for this judgment
Judgment
Aruna Jagadeesan J.
The Petitioner is the husband of the detenu Mariappan @ Vijayamari. The Petitioner has come forward with this Habeas Corpus Petition,
seeking for the relief of quashing the impugned detention order dated 22.10.2010, slapped on her husband branding him as ""Goonda"" as
contemplated under 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 14/1982).
Mr. V. Kathirvel, the learned Senior Counsel for the Petitioner mainly contended that there is unexplained delay in considering the
representation of the detenu, which would vitiate the detention order. It is pointed out by the learned Senior Counsel for the Petitioner that the
detenu sent his representation, dated 9.5.2011 and the same was received by the Government on 11.05.2011 and remarks were called for on
12.05.2011 and remarks have been received on 20.05.2011 and as such, even calling for the remarks and for receiving the remarks, there was a
delay of eight days. It is further contended that there is a further delay of three days in considering the representation, as the authorities concerned,
after the receipt of the remarks, dealt with the remarks on 23.05.2011 and the file was sent to the Hon''ble Minister for (Electricity and Prohibition
and Excise) on 23.05.2011 and the rejection letter was prepared on 26.05.2011 and the rejection letter was sent to the detenu on 26.05.2011
and ultimately the same was served on the detenu on 27.05.2011 and as a result, there is a further delay of four days in considering the
representation and there is no explanation for the same and as such, the impugned order of detention is vitiated and the same is liable to be
quashed.
In support of his contentions, the learned Senior Counsel for the Petitioner placed reliance on the decision of this Court reported in 2007 2
MWN Cri 145 DB (Sumaiya v. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George,
Chennai-9 and Anr.).
Per contra, Mr. Jothi, the learned Additional Public Prosecutor would submit that for receiving the remarks, there is a delay of eight days. It is
submitted that out of eight days, there are two intermittent holidays and as such, there is a delay of only six days in receiving the remarks. It is
further contended that thereafter, there is no delay in considering the representation, as the file was dealt with by the Under Secretary and the
Deputy Secretary on 23.05.2011 itself and the file was sent to the Hon''ble Minister for (Electricity and Prohibition and Excise) on 25.05.2011
and the rejection letter was prepared on 26.05.2011 and the same was served on the detenu on 27.05.2011 and as such, there is a delay of only
four days. But, however, he would submit that there was no intermittent holidays and that there was no deliberate delay on the part of the
authorities concerned to consider 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 the learned Counsel on either side and also
perused the impugned order of detention and the materials placed on record.
At the outset, it is to be stated by this Court that there is an unexplained delay in considering the representation of the detenu at two different
stages. It is seen that there is a delay in calling for the remarks and receiving the remarks and there is also further delay in considering and disposing
of the representation of the detenu. The perusal of the proforma produced by the learned Additional Public Prosecutor would reveal that the
detenu sent his representation dated 09.05.2011 and the same was received on 11.05.2011 and thereafter, remarks have been called for on
12.05.2011 and no reminders have been sent by the authorities and ultimately, the remarks have been received on 20.05.2011. It is seen that at
the first stage, there are eight days delay and there were two intermittent holidays and if we give concession for those two days, there is a delay of
six days in receiving the remarks by the authorities concerned.
We are of the considered view that there is absolutely no explanation whatsoever forthcoming from the authorities concerned for such a delay. It
is also pertinent to note that there is a further delay in considering the representation after receiving remarks, as the file was put up to the Under
Secretary and The Deputy Secretary on 23.05.2011 and the same was placed before the Hon''ble Minister for (Electricity and Prohibition and
Excise) on 25.05.2011 and the letter of rejection was prepared only on 26.05.2011 and the same was served on the detenu on 27.05.2011 and
as a result, there is a further delay of four days in considering and disposing of the representation of the detenu. It is seen that at the second stage,
there was no intermittent holidays and therefore, there is a delay of four days and there is, totally, ten days delay in considering 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 (Cri) 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 any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.
(v) In yet another decision of the Hon''ble Apex Court reported in Rajammal Vs. State of Tamil Nadu and Another, , it is held that 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 preempted 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 the 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.
(vi) 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.
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 (Cri.) 145 (DB) Sumaiya v. The Secretary to Government, Prohibition and Excise Department, Government of Tamil
Nadu, Fort St. George, Chennai-9 and Anr. 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 so far as the case on hand is concerned, we have already pointed out that there is, totally, unexplained delay of ten days in considering the
representation of the detenu and as such, the same would vitiate the impugned order of detention. Therefore, in view of the above said
observations, we are constrained to quash the impugned order of detention.
In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the 1st Respondent in Detention Order No.
53/BDFGISSV/2010 dated 22.10.2010 is hereby quashed and the detenu Mariappan @ Vijayamari is set at liberty forthwith, unless his detention
is required in connection with any other case.