Madras High Court
Jothi vs The Secretary To The Government on 8 December, 2011
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/12/2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU H.C.P(MD) No.792 of 2011 Jothi .. Petitioner Versus 1.The Secretary to the Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-9. 2.The District Collector and District Magistrate, Madurai District, Madurai. .. Respondents Prayer Petition filed under Article 226 of the Constitution of India to issue Writ of Habeas Corpus calling for the entire records connected with the detention order passed by the second respondent in C.M.P.No.8/2011 dated 31.08.2011 and quash the same and direct the respondents to produce the body and person of the petitioner's husband by name Eswaran, aged about 29 years, now confined in Central Prison, Madurai, before this Court and set him at liberty forthwith. !For Petitioner ... Mr.V.Kathirvelu, Senior Counsel for Mr.C.M.Arumugam ^For Respondents... Mr.T.Mohan, Additional Public Prosecutor :ORDER
(The 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 second respondent, dated 31.08.2011, made in C.M.P.No.8/2011, and quash the same, and to produce the detenu, namely, Eswaran, aged about 29 years, confined in the Central Prison, Madurai, before this Court and to set him at liberty.
2. The petitioner has stated that the second respondent had passed the impugned detention order, dated 31.08.2011, 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.124, Home, Prohibition and Excise (XVI) Department, dated 18.07.2011, under sub-section (2) of Section 3 of the said Act, directing the detention of Eswaran, son of Bose, in the Central Prison, Madurai, terming him as a 'Goonda'.
3. Even though various grounds had been raised in the Habeas Corpus Petition filed by the petitioner, the learned counsel appearing on behalf of the petitioner had placed emphasis on the grounds, mentioned hereunder, while stating that the impugned detention order passed by the Detaining Authority is bad in the eye of law. He had submitted that there was clear non-application of mind, on the part of the Detaining Authority, while passing the detention order against the detenu.
4. The learned counsel appearing for the petitioner had referred to Paragraph-5 of the grounds of detention, which reads as follows:
"5. I am aware that Easwaran has been remanded to judicial custody by Judicial Magistrate No.VI, Madurai, in connection with case in Cr.No.130/09 u/s 304(A) @ 147, 148, 120(b), 364, 302, 201 I.P.C. of Avaniapuram Police Station and he is a remand prisoner, lodged in Madurai Central Prison and he has not moved bail application. There is real possibility of his coming out on bail by filing bail application for the above case before the same Court or High Court, since in similar cases bails are granted by the concerned Court or High Court after lapse of time. If he comes out on bail he will indulge in such activities, which will be prejudicial to the maintenance of public order and further the recourse to the normal law will not have the desired effect of effectively preventing him from indulging in activities prejudicial to the public order and therefore there is compelling necessity to pass this order of detention."
5. He had submitted that it is clear, from the above paragraph, that the Detaining Authority was aware that the detenu had been remanded in custody, in Crime No.130 of 2009, on the file of the Avaniapuram police station, and that no bail application had been moved in the said case, on behalf of the detenu. Thus, the statement of the Detaining Authority that the detention order was being passed, in order to prevent the detenu from indulging in activities prejudicial to the maintenance of public order, has been made, without any materials on record. As such, it is clear that it is an ipse dixit of the Detaining Authority. It clearly shows the non-application of mind, by the Detaining Authority, while passing the detention order.
6. The learned counsel appearing on behalf of the petitioner had submitted that, even though the Detaining Authority had stated that there is a real possibility of the detenu coming out on bail, by filing a bail application, no materials were available on record for the Detaining Authority to arrive at such a conclusion. He had further submitted that the Detaining Authority has not made out a case against the detenu, to show that there was an imminent or a real possibility of the detenu being released on bail.
7. It had been further submitted that, even though the Detaining Authority had made a mention about similar cases, in which bail orders had been granted, complete details of such cases had not been furnished to the detenu, in order to enable him to make an effective representation against the detention order.
8. With regard to the delay in considering the representation, dated 5.9.2011, made on behalf of the detenu, the learned counsel for the petitioner had submitted that the inordinate delay that has occurred in the disposal of the representation made on behalf of the detenu would vitiate the detention order passed by the Detaining Authority.
9. It has been pointed out that the remarks, relating to the said representation, had been called for, on 08.09.2011. The remarks had been received, on 19.09.2011. As such, there has been a delay of eleven days. Between 08.09.2011 and 19.09.2011, four days, i.e. 09.09.2011, 11.09.2011, 17.09.2011 and 18.09.2011, were Government holidays. Thus, there has been an actual delay of seven days in considering the representation.
10. In support of his contentions, the learned counsel appearing for the petitioner had relied on the decision of this Court, in Sumaiya Vs The Secretary to Government, reported in 2007 (2) MWN (Cri.) 145, (DB), to state that even a delay of three days in considering the representation is fatal to the detention order passed by the Detaining Authority concerned. He had further submitted that the unexplained delay caused in considering the representation would vitiate the detention order passed by the Detaining Authority.
11. The learned counsel for the petitioner had relied on the decision of the Supreme Court, in Rekha Vs. State of Tamilnadu (2011 (5) SCC 244), wherein, it has been held that, where a detention order is passed against a person already in custody, there should be a real possibility of his release on bail, if he has moved a bail application, and if it 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 a likelihood of the detenu being released on 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, without which, the bald statement of the authority cannot be believed.
12. The learned counsel had also submitted that, if a person is already in prison, unless a co-accused in the alleged offence had already been released, it cannot be concluded that there is an imminent possibility of the detenu coming out on bail, and that he would indulge in activities prejudicial to the maintenance of public order. Even in such a case, the co-accused ought to have been involved in the committing of the alleged offence, similar to that of the detenu, in all aspects. The learned counsel for the petitioner had also submitted that there were no cogent materials available before the Detaining Authority for the passing of the detention order, based on his subjective satisfaction.
13. Per contra, 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. He had submitted that the Habeas Corpus Petition has been filed even before the order of detention, passed by the detaining authority, had been considered by the Advisory Board. Therefore, it is liable to be dismissed. He had relied on the decision of the Kerala High Court, in R.P.Goyal Vs. State, AIR 1974 Kerala 85 (V 61 C 24), wherein, it has been held that the protection envisaged by the Constitution of an Advisory Board, for looking into the defects in the passing of an order of detention, is a substantial protection. Normally, therefore, before the order has become final, on the application of mind relating to the question of existence or otherwise of the grounds justifying the detention, by the State Government, and the Advisory Board expressing its opinion, as to whether there is sufficient cause for such detention, it should not be interfered with by the High Court, as it should not deal with the question on insufficient material.
13.1. The learned counsel had relied on the decision of the Supreme Court, in D.M.Nagaraja Vs. The Government of Karnataka and others, reported in 2011 (2) TLNJ 361 (Criminal), 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.
14. The learned counsel appearing on behalf of the respondents had relied on the decision of the Supreme Court, in A.Geetha Vs. State of Tamilnadu (CDJ 2006 SC 702), wherein, it had been held that the only requirement is that the Detaining Authority should be aware that the detenu is already in custody and that he is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse-dixit of the Detaining Authority. It would be sufficient if the Detaining Authority came to the conclusion, by his subjective satisfaction, based on the relevant materials. Normally, such satisfaction is not to be interfered with.
15. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, and on a perusal of the records available, and in view of the decisions cited supra, this Court is of the considered view that there was no proper application of mind, by the Detaining Authority, in passing the impugned detention order against the detenu. The non- application of mind by the Detaining Authority is also clear from the fact that no bail application had been moved, even though the detenu was in remand, in the case relating to Crime No.130 of 2009, on the file of the Avaniapuram Police Station, at the time of the passing of the detenion order.
16. Even though the Detaining Authority had stated, in the grounds of detention, that there is an imminent or a real possibility of the detenu coming out on bail, there is nothing available on record to substantiate such a claim. Unless, there are sufficent and cogent materials for the Detaining Authority to arrive at his conclusion that there is an imminent or a real possibility of the detenu coming out on bail and indulging in activities, which would be prejudicial to the maintenance of public order, the conclusion of the Detaining Authority would be a mere ipse dixit and as such, the conclusion arrived at by the Detaining Authority cannot be held to be valid in the eye of law.
17. Further, unless, the similar cases referred to by the Detaining Authority, in the grounds of detention, are comparable with the cases relating to the detenu, in all aspects, it would not be open to the Detaining Authority to arrive at his conclusion that the detenu would be enlarged on bail. In the present case, It has not been shown that all the relevant materials relating to the similar cases, referred to by the Detaining Authority had been furnished to the detenu, in order to enable him to make an effective representation against the detention order. The failure of the Detaining Authority to furnish all the materials would, no doubt, cause substantial prejudice to the detenu, resulting in the failure on the part of the Detaining Authority in following the mandate, enshrined in Clause(5) of the Article 22 of the Constitution of India.
18. Even though the Detaining Authority had stated that there was a compelling necessity to detain the detenu, in order to prevent him from indulging in activities, which would be prejudicial to the maintenance of public order, no cogent materials were available on record to substantiate such a claim.
19. Further, in a number of decisions this Court had held that cogent materials should be available for the Detaining Authority to arrive at his subjective satisfaction for the passing of the detention order. The materials available on record should be sufficient for the detaining authority to arrive at his decision that the detenu is likely to be enlarged on bail and that, in such a case, he would indulge in activities, which would be prejudicial to the maintenance of public order. Unless, such materials are available, the decision of the Detaining Authority to detain the detenu, by passing the detention order, would clearly be an indication of non-application of mind on the part of the Detaining Authority, in the passing of the detention order.
19.1) In Velumurgan @ Velu Vs. The Commissioner of Police (2005(1) CTC
577), it had been held as follows:
"3.. unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated."
19.2) In Kasthuri Vs. The District Collector and D.M., Kancheepuram (2009(1) MWN (Cr.) 418 (DB), this Court had set aside the detention order passed against the detenu stating that the Detaining Authority had not followed the guidelines prescribed by the Supreme Court, in D.K.Basu Vs. State of W.B, (1997 SCC (Cri)
92), and the other decisions of the Supreme Court, wherein, the following facts were considered as being violative of the orders of preventive detention passed by the Detaining Authorities concerned:
"(a) Non-intimation of the detention order to any of the family members or friends within a reasonable time
(b) Delay in considering the representation made by the detenu or any other person interested, on behalf of the detenu.
(c) Non-supply of copies of material documents relied on by the Detaining Authority.
(d) Furnishing illegible copies of documents, so as to prevent detenu from making effective representation as contemplated under the Act.
(e) Non-furnishing of copies translated in the language known to the detenu for making effective representation.
(f) Non-application of mind by the Detaining Authority in having subjective satisfaction while passing the order."
19.3) In A.Murugesan Vs. Secretary to Government (2010 (1) MLJ (Crl.) 950), it had been held that, while no bail application had been filed on behalf of the detenu, before the Court concerned, it would be too early for the detaining authority to record his satisfaction that the detenu is likely to come out on bail or that, if he is let to remain at large, he would indulge in such activities, in future, which would be prejudicial to the maintenance of public order. Unless, cogent materials are available, the subjective satisfaction of the detaining authority would be a clear indication of the non-application of mind by the detaining authority in the passing of the detention order.
19.4) In Balaji Vs. State of Tamil Nadu (2010(1) CTC 820), a Division Bench of this Court, referring to the decisions, in Chandru Vs. The Commissioner of Police, Thiruchirapalli City, Trichy and another (2007(1) TCJ 766, and Chelladurai Vs. State of Tamil Nadu, represented by Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009, and another , had held that the mere statement of the Detaining Authority, that there is a real possibility of the detenu coming out on bail, especially, when no bail application had been filed on behalf of the detenu, shall not be sufficient to show that the satisfaction recorded by the Detaining Authority is based on cogent materials.
19.5) In Soosai @ Balu Vs. The Secretary to Government [2011(1) MWN (Cr.) 416 (DB)], it had been held as follows:
"4.... In the second and Third Adverse cases and also in the Ground case, the detenu has not moved for any bail. Apart from this, the Second Adverse case is one for murder. But the Authority has mechanically stated in the order that there is a real possibility of the detenu coming out on bail. The said observation is without any basis or material much less cogent material, which the law would require."
19.6) In Gowri Vs. The Secretary to Govt. of Tamil Nadu, Home, Prohibition and Excise Department (2011(2) CTC 145), this Court had held that the subjective satisfaction recorded by the Detaining Authority was without sufficient or cogent materials, relying on the decision of the Full Bench of this Court, in Kalaiselvi,G. Vs. The State of Tamil Nadu (2007(5) CTC 657), wherein, it had been held as follows:
"24.From the reading of the aforesaid decisions, it is clear that the conclusion of the Detaining Authority that there is imminent an possibility of the detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the Detaining Authority. As has been observed by the Supreme Court, the question as to whether there is possibility of being released on bail depends upon several factors, such as nature of offence, the stage of the investigation, the availability of statutory bail as envisaged under section 167(2), Proviso oof Cr.P.C. Even though it is not possibilt nor desirable to enumerate the circumstances in which bail is likely to be granted, one can venture to say that it is very rare for a Court of law to grant bail during pendency of the investigation when there is allegation of commission of serious offence, such as punishable under Section 302 or Section 395, I.P.C. On the other hand, it is also safe to conclude that in offences relating to prohibition laws or white collar offences, the Courts usually grant bail notwithstanding the fact that in offences relating to prohibition laws or white collar offences, the Courts usually grant bail notwithstanding the fact that investigation may be still going on. Similarly, when a charge-sheet is not filed within the statutory period contemplated, notwithstanding the seriousness of the allegation, on the expiry of the period, the accused got a right to be released on bail.
25. In the present case, the conclusion of the Detaining Authority, as already been extracted. We have searched for the materials on record in support of such conclusion and we find none. There was no imminent possibility of the detenu obtaining statutory bail as hardly 60 days had elapsed from the date of the arrest and the investigating agency had more than a month for completion of the investigation. The alleged offence under Section 302, IPC cannot be characterised as an offence of routine nature which would prompt any Court to grant bail even before completion of investigation. Top of it, the Bail Application had in fact been rejected by the Sessions Judge and no other Bail Application was pending. In such a factual situation, in our considered opinion, the decision of the Supreme Court in T.V.Saravanan v. State, (2006(2) SCC 664, is squarely applicable and it can be said that the conclusion of the Detaining Authority is mere ipse dixit and there is hardly any material in support of such conclusion. On this score also, the detention order is liable to be quashed."
19.7) In M.Rajesh Vs. The Government of Tamil Nadu [2011(1) MWN (Cr.) 279 (DB)], it had been held that, when no bail application is pending, the decision of the Detaining Authority that there was a real possibility of the detenu coming out on bail would show the non-application of mind on the part of the Detaining Authority, in passing the detention order.
20. Further, in the present case, the delay caused in the disposal of the representation, dated 5.9.2011, made on behalf of the detenu, has not been properly explained by the respondents, either in the counter affidavit filed on their behalf, or in the oral submissions made by the learned Additional Public Prosecutor, appearing on behalf of the respondents.
21. 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 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) 21.1. In the decision, in Prabhu Dayal Deorah Vs. District Magistrate, Kamrup and others, (AIR 1974 SC 183), the Supreme Court has held that the constitutional requirement of Article 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) of Article 22 of the Constitution of India.
21.2. In Ramamurthy 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.
21.3. In a decision of the Constitution Bench of the Supreme Court, in Jayanarayan 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."
21.4. The Supreme Court, in Mahesh Kumar Chauhan alias Banti Vs. Union of India & Others, (1990) 3 SCC 148), while dealing with a case of preventive detention, has observed as under:
"Except merely mentioning that the representation was forwarded to the concerned sponsoring authority on August 25, 1989 and the comments from the sponsoring authority was received by the Department on September 11, 1989, there is absolutely no explanation as to why such a delay had occurred. This undue and unexplained delay is in violation of Article 22(5) rendering the detention order invalid."
21.5. In RAMA DHONDU BORADE VS. V.K.SARAF, COMMISSIONER OF POLICE (1989) 3 SCC 173), the Supreme Court has observed as follows:
"A representation of a detenu whose liberty is in peril 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 be desirable - indeed appropriate - for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay. In absence of any explanation, Court cannot wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of a very serious nature as in the present case"
21.6. In the decision, in Venkatesan @ Maya Venkatesan (2007(1) MLJ (Crl.) 1176), it has been held as follows:
"10..... thus 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 delay, but how it is explained by the Authority concerned. In this case, as pointed out above, there is absolutely no explanation for the delay of four days. It is a constitutional obligation to consider the representation forwarded by the detenu without any delay, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Hence, on this ground also the order of detention is liable to be quashed."
21.7. 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.
21.8. In Kalaiselvi.G. Vs. The State of Tamil Nadu (2007(5) CTC 657), a Full Bench of this Court had held as follows:
"26.The last contention is relating to delay in disposal of the representation. It is by now well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity of making 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 unnecessary delay. This position is apparent from several decisions of the Supreme Court, including the decision Usha Agarwal vs. Union of India and others (2007 (1) SCC 295), wherein, after referring to the Constitution Bench decision of the Supreme Court in Kamleshkumar Ishwandas Patel vs. Union of India, (1995) 4 SCC 51, it was observed:
This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention."
21.9. In Rekha Vs. State of Tamilnadu (2011(5) SCC 244), it has been held that the personal liberty of a person is protected, under Article 21 of 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.
21.10. A dissenting note seems to have emerged from the decision of the Supreme Court, in D.M.Nagaraja Vs. The Government of Karnataka and others (2011(2) TLNJ 361 (Criminal), wherein, it has been held that there is no constitutional mandate, under Clause (5) of Article 22, much less any statutory requirement, to consider the representation made on behalf of the detenu, before the order of detention is confirmed. However, it is needless to point out that the correct position of law has been enunciated by the Supreme Court, in its decision, in K.M.Abdulla Kunhi Vs. Union of India (1991(1) SCC 476), wherein, it had been held as follows:
"12........ The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal....."
21.11. 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, in Rajammal 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) of Article 22 of the Constitution of India.
21.12. In Rashid sk. v. State of West Bengal reported in, 1973 (3) SCC 476, the Supreme Court 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."
21.13. In Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65, the Supreme Court has held thus;-
"...the right to representation under Article 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 of Article 22(5) of the Constitution of India."
21.14. In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others, reported in 1989 SCC (Crl) 554, the Supreme Court has held as follows:-
"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)."
21.15. In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, (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.
21.16. In Rajammal v. State of Tamil Nadu, 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 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."
21.17. In K.M.Abdulla Kunhi v. Union of India, (1991) 1 SCC 476, it has been 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."
21.18. In a recent decision, in Ummu 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', in Article 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.
22. In such circumstances, this Court is constrained to hold that the impugned detention order, dated 31.08.2011, passed by the Detaining Authority, is devoid of merits and therefore, it is liable to be set aside. Hence, it is set aside. Accordingly, 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.
KM To:
1.The Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-9.
2.The District Collector and District Magistrate, Madurai District, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.