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Judgment
K.M. Natarajan, J.—These two writ petitions are filed by the detenus themselves under Article 226 of the Constitution of India, seeking for
the issue of writs of habeas corpus to quash the orders of detention dated 9.1.1991 passed against them and to set them at liberty.
The impugned orders were passed by the Commissioner of police, Madras, the first Respondent herein, in exercise of the powers conferred on
him by Sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug offenders, Forest Offenders,
Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982, (Tamil Nadu Act 14 of 1982) hereinafter referred to as ''the Act'', with a
view to preventing them from acting in any manner prejudicial to the maintenance of public order.
The said orders were passed after the detenus came to adverse notice as goondas and on the basis of the ground cases they were detained.
Therefore, by consent of both parties, both the writ petitions are clubbed together and disposed of by a common order.
The impugned orders are challenged by the Petitioners on various grounds but Mr. T. Sudanthiram, learned Counsel for Petitioners, confined his
arguments only to the question of delay in the disposal of the representations given by the detenus. The representations were sent by the detenus on
21.1.1991 and they were rejected on 28.2.1991. Therefore, there is inordinate delay of 37 days and this would vitiate the orders of detention. It is
to be noted that no counters had been filed on the side of the Respondents. However, the learned Additional Public Prosecutor brought forth
certain facts which were available with him.
In view of the specific plan taken by the Petitioners, it is not necessary to reiterate the details of the case which led to the passing of the orders
and further they had been set out in the memorandum of grounds served on the detenus.
Learned Counsel for Petitioners states that the orders of detention were passed on 9.1.1991: they were approved by the Government on
18.1.1991; the detenus sent their representations on 21.1.1991; the Advisory Board met on 22.1.1991; the representations were rejected only on
28.2.1991 and they were confirmed on 13.3.1991. Thus it is clear that there was a delay of 37 days in the disposal of the representations which is
inordinate the unexplained. Though Petitioners have raised this aspect of delay in paragraph Nos. 16 to 18 of their affidavits, it has not been
challenged by filing any counter affidavit on behalf of the Respondents. However, learned Additional Public Prosecutor would say that the
representations were received on 25.1.1991 by the Detaining Authority; that 26th and 27th were holidays, that thereafter remarks were called for
on 1.2.1991, that in spite of several reminders the sponsoring Authority sent the remarks only on 18.2.1991 and thereafter the representations
were taken up, considered and rejected. As such, he would submit that the delay is only on the part of the sponsoring Authority. Even according to
the Additional Public Prosecutor, the delay on the part of the Sponsoring Authority from 28.1.1991 to 18.2.1991 is 21 days and it remains
unexplained.
In this connection, learned Counsel for Petitioners drew our attention to the decision of the Supreme Court in Mahesh Kumar Chauhan v. Union
of India 1990 Crl. SCC 434 wherein it was held:
A representation of a detenu whose liberty is in petil should be considered and disposed of as expeditiously as possible; otherwise the continued
detention will render itself impermissible and invalid as being violative of Article 22(5). 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. In case the appropriate authority is unable to explain
personally the delay at various stages, then it will to desirable - indeed appropriate - for the concerned authority or authorities at whose hands the
delay has occurred to individually explain such delay.
In Chelliah Alias Sulli, K. v. The Commissioner and Secretary to Government ETC 1988 L.W. Crl. 238 . a Bench of this Court, to which one of
us (K.M. Natarajan, J.) was a party, in similar circumstances, held as under:
Applying the ratio laid down in the above decisions, to the instant case, we find that there is a delay of ten days between the date of representation
and the date of receipt of the representation by the Government, that is, from 22nd June, 1987 to 2nd July, 1987, and subsequently, when the
parawar remarks were called for on 3rd July, 1987 the same were received on 20th July, 1987 and there is a delay of 17days and likewise after
receipt of the parawar remarks, the Government disposed of the representation rejecting it on 27th July, 1987, and there is a delay of seven days.
Thus, there is unexplained inordinate delay in rejecting the representation of the Petitioner by the Government. Since this inordinate delay has not
been explained, the impugned order is vitiated.
Applying the principle laid down in the cases relied upon to the facts of the instant case, there is an inordinate delay of 37 days or at least even
according to the Respondent, there is a delay of 21 days in getting parawar remarks for which there is absolutely no explanation. This delay in our
view is inordinate and unexplained and hence vitiates the orders of detention as being violative of Article 22(5) of the Constitution of India. Both
these writ petitions will stand allowed and the impugned orders are quashed. The Petitioners are directed to be set at liberty forthwith, unless
otherwise required in connection with any other case.