Madras High Court
Chella Veeramal vs The Commissioner Of Police on 25 November, 2011
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/11/2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU H.C.P(MD) No.738 of 2011 Chella Veeramal .. Petitioner. Versus 1. The Commissioner of Police, Madurai City, Madurai. 2. State of Tamilnadu, Rep. by its Secretary to Government Government of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-9. .. Respondents. Prayer Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus Petition filed seeking to call for the records pertaining to the proceedings of the first respondent made in his proceedings in NO.16/BDFGISSV/2011, dated 17.8.2011, and quash the same and set the petitioner's husband by name "Ochubalu, S/o.Mayandi Thevar, aged about 46 years at liberty from Central Prison, Cuddalore. !For Petitioner ... Mr.Abudu Kumar for Mr.F.Deepak ^For Respondents ... Mr.K.Chellapandian Additional Advocate General :ORDER
(Order of the Court was made by M.JAICHANDREN,J) This Habeas Corpus Petition has been filed praying that this Court may be pleased to call for the records pertaining to the proceedings of the first respondent, in No.16/BDFGISSV/2011, dated 17.08.2011, and quash the same and to set at liberty the husband of the petitioner, namely, Ochubalu, son of Mayandi Thevar, aged about 46 years, detained at the Central Prison, Cuddalore.
2. It has been stated that the petitioner is the wife of the detenu, Ochubalu. She had stated that the first respondent had passed an order, 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.119, Home, Prohibition and Excise (XVI) Department, dated 18.7.2011, under Sub-section (2) of Section 3 of the said Act, in his proceedings No.16/BDFGISSV/2011, dated 17.08.2011, directing the detention of the husband of the petitioner, in the Central Prison, Cuddalore, terming him as a "Goonda".
3. It has been further stated that the first respondent had not followed the procedures prescribed by the Tamil Nadu Act 14 of 1982, as he had not perused the materials placed before him, while passing the order of detention. The members of the family of the detenu had not been informed about the passing of the detention order against the detenu, within a reasonable time. The detention order passed by the first respondent had not been approved by the second respondent State government, within the time stipulated by the provisions of the Tamil Nadu Act 14 of 1982. It has also been stated that the representations, dated 19.08.2011, submitted by the petitioner, to the first and the second respondents, have not been disposed of, without undue delay. It has also been stated that, in paragraph 5 of the grounds of detention, the detaining authority has observed that he is aware that the detenu, Ochubalu, son of Mayandi Thevar, is in remand, in the ground case, in C5 Karimedu PS Crime No.1941/2011, and in the first adverse case, in C5 Karimedu PS Crime No.181/2010, and in the second adverse case, in C5 Karimedu PS Crime No.1947/2011, at the Central Prison, Cuddalore. It has been further stated that the detaining authority had also observed that he is aware that the bail applications filed on behalf of the detenu, in the first adverse case, in C5 Karimedu PS Crime No.181/2010, in Crl.MP.No.2754/2011, had been dismissed by the Principal Sessions Judge, Madurai, on 12.08.2011. Similarly, the bail applications filed on behalf of the detenu, in the second adverse case, in C5 Karimedu PS in Crime No.1947/2011, and in the ground case, in C5 Karimedu PS Crime No.1941/2011, in Crl.M.P.No.3545 of 2011 and Crl.MP.No.3544 of 2011, respectively, before the Judicial Magistrate No.V, Madurai, are pending disposal.
4. It had also been stated that he is aware, through the statement made by one Rajamani, elder brother of Ochubalu, that he is making efforts to file another bail application in the first adverse case, in C5 Karimedu PS Crime No.181/2010. Therefore, he had stated that there is a real possibility of the detenu coming out on bail, by filing a further application, in the first adverse case, in C5 Karimedu PS Crime No.181/2010 and also by the pending bail applications in the second adverse case, in C5 Karimedu PS Crime No.1947/2011 and also in the ground case, in C5 Karimedu Police Station, in Crime No.1941/2011, in which he is in remand and detained in the Central Prison, Cuddalore.
5. It has been further stated that the detaining authority had also observed, in paragraph 5 of the detention order, that as bail orders had been granted by the Courts concerned and by the higher courts, in similar cases, it is evident that there is real possibility of the detenu coming out on bail. He had also stated that, from the bail order granted in favour of the accused C.T.Arumugam, son of Shanmugam, concerned in Avaniapuram PS Crime No.242/2009, under Sections 147,148,341 and 307 I.P.C., by the Principal Sessions Judge, Madurai, which is similar to the offences alleged to have been committed by the detenu, in the ground case and in the adverse cases, it is likely that the detenu would also be granted bail orders in the ground case, as well as in the adverse cases. It has also been stated that the detaining authority had further observed that if the detenu comes out on bail, he would indulge in activities, which would be prejudicial to the maintenance of public order. Therefore, there is a compelling necessity to pass an order of detention, detaining the detenu.
6. The petitioner had further stated that, insofar as the first adverse case is concerned, the Principal Sessions Judge, Madurai, had dismissed the bail application filed on behalf of the detenu, on 12.08.2011. Therefore, the placing of reliance, by the detaining authority, on the bail order granted in favour of C.T.Arumugam, is of no relevance. Thus, it is clear that the detaining authority had not applied his mind, while passing the order of detention. Further, there is no truth in the statement, said to have been made by Rajamani, the elder brother of the detenu, that he is making efforts for filing bail application, in the first adverse case, in C5 Karimedu PS Crime No.181/2010.
7. The petitioner has further stated that, insofar as the second adverse case and the ground case are concerned, the bail applications filed on behalf of the detenu are, admittedly, pending adjudication. Therefore, the observation of the detaining authority that the detenu would come out on bail cannot be sustained. The detaining authority ought not to have passed the order of detention without awaiting the results in the bail applications, which are pending disposal. Such an order passed by the detaining authority is premature in nature and therefore, it is liable to be quashed.
8. It had been further stated in para 3 of the grounds of detention, that the detenu and his associates had abducted and threatened one Mohandoss Gandhi, with deadly weapons, on 6.7.2011, asking him to withdraw the petition he had filed before the Madurai Bench of the Madras High Court, in Crl.O.P.No.714 of 2011 and therefore, he had raised an alarm. When the general public, who were nearby the place of occurrence had rushed to his help, the detenu and his associates had threatened them with deadly weapons, due to which, there was disturbance of public order in the area concerned. However, from the complaint made by the said Mohandoss Gandhi, it is clear that there was no threat to the public and there was no disturbance of public order in the area concerned, as alleged in the grounds of detention. If at all, it could only be a case of maintenance of law and order. It has been further stated that the detention order had been passed by the detaining authority, on 17.8.2011, based on the ground case, in C5 Karimedu PS Crime No.1941 of 2011, registered on 8.8.2011, for the offence alleged to have taken place, on 6.7.2011.
9. It has been further stated that the detenu had been arrested, on 06.08.2011, for an offence said to have been committed, on 22.01.2010. Further, the second adverse case is said to have taken place, on 25.02.2008 and the ground case had been registered, on 08.08.2011, for an occurrence alleged to have taken place, on 06.07.2011. Thus, it is clear that the reasons shown for the passing of the detention order, against the detenu, has become stale in nature. Further, it cannot be stated that the detenu is in the habit of committing crimes, as there is no basis for arriving at such a conclusion. The detenu had been arrested, on 06.08.2011 and the ground case had been registered, only on 08.08.2011. The second adverse case had been registered, on 09.08.2011. Further, in the first adverse case, the detenu's name had not been shown as an accused.
10. It has also been stated that the personal liberty of a person recognised, under Article 21 of the Constitution of India, cannot be curtailed on flimsy grounds, as in the present case. The present case relates to a civil dispute between the parties and it may not be a reason for the passing of the detention order against the detenu stating that he is a habitual criminal offender. Hence, it is clear that the detaining authority had passed the order of detention, in a mechanical manner, without following the dictum laid down by the Supreme Court, in Rekha Vs. State of Tamil Nadu, (2011) 5 SCC 244. Hence, the detention order, dated 17.08.2011, passed by the first respondent, is arbitrary and illegal and therefore, it is liable to be set aside.
11. The learned counsel appearing on behalf of the petitioner had submitted that, in the detention order passed by the first respondent, on 17.08.2011, the observations made by the detaining authority, in paragraph 5 of the grounds of detention, would clearly indicate that he had not applied his mind, while passing the said order of detention. Even though the detaining authority was aware that the detenu is in detention, in the Central Prison, Cuddalore, in the ground, in C5 Karimedu Police Station Crime No.1941/2011, and in the first adverse case, in C5 Karimedu Police Station Crime No.181/2010, and in the second adverse case, in C5 Karimedu Police Station Crime No.1947/2011, he had stated that there is a real possibility of the detenu coming out on bail in the ground case, as well as in the adverse cases. There is no basis for the detaining authority to arrive at the conclusion that, if the detenu is allowed to be at large, he would indulge in activities, which would be prejudicial to the maintenance of public order.
12. The learned counsel had also stated that it is not appropriate for the detaining authority to state that a bail order would be passed in favour of the detenu, by comparing his case with that of C.T.Arumugam, since, both the cases are different in nature. There is no relevance in such a comparison being made between the two cases. Thus, it is clear that the detaining authority had not applied his mind, properly, while passing the order of detention. Further, there is no truth in the statement, said to have been made by Rajamani, the elder brother of the detenu, that he is making efforts for filing a further bail application in the first adverse case.
13. It is not in dispute that the bail application filed on behalf of the detenu, on 12.08.2011, in the first adverse case, before the Principal Sessions Judge, Madurai, had already been dismissed. It is also clear that the bail applications, filed on behalf of the detenu in the second adverse case and in the ground case, were pending adjudication. Therefore, the observation of the detaining authority, while passing the order of detention, that there is a real possibility of the detenu coming out on bail, cannot be sustained.
14. Even though the detaining authority had referred to a similar case, in which a bail order had been granted to the accused concerned, the necessary particulars relating to the said case had not been furnished to the detenu. He had relied on a decision of the Supreme Court, in Rekha Vs. State of Tamilnadu, in 2011(5) SCC 244, in support of his contentions.
15. The learned counsel for the petitioner had also relied on the decision of this Court, in Irusammal Vs. State of Tamilnadu, [(2008) 3 MLJ (Crl.) 1533], wherein, this Court had held that, when a bail application filed by the detenu is pending before a Court, the observation by the detaining authority, in his order, that there is a real possibility of the detenu coming out on bail would vitiate the detention order.
16. He had also stated that the detaining authority had not shown as to how bail orders would be granted, simultaneously, by the Sessions Court, as well as by of the Court of the Judicial Magistrate, in the ground case and also in the adverse cases. It is an ipse dixit statement of the detaining authority, made without any basis, as there are no materials on record, for the detaining authority to arrive at such a conclusion. The case of C.T.Arumugam cannot be compared with, either the ground case, or the adverse cases, relating to the detenu, as they are not on the same footing. The factual position in the cases compared are different in nature. The bail order, said to have been granted in favour of the said C.T.Arumugam, had been passed, based on the bail order granted to the co-accused in the concerned case. However, there is no co-accused in the cases relating to the detenu. Further, only the copy of the bail order, granted in favour of the said C.T.Arumugam, had been furnished to the detenu. The other related records had not been given to the detenu, to enable him to make an effective representation.
17. Thus, it is clear that there is no subjective satisfaction of the detaining authority, in the passing of the detention order, dated 17.08.2011. There were no materials on record before the detaining authority for him to arrive at the conclusion that there is a real possibility of the detenu coming out on bail and that he would indulge in certain activities in future, which would be prejudicial to the maintenance of public order. The impugned order of detention passed by the detaining authority is contrary to the principles laid down by the Supreme Court, in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244.
18. Further, there was no compelling necessity to pass the detention order, detaining the detenu in custody, as the occurrence relating to the first adverse case is said to have taken place, on 22.01.2010 and in the second adverse case, on 25.02.2008. The concept of the presence of the compelling necessity would arise only when the occurrence relating to the detention order is live and proximate. However, in the present case, such a situation does not arise.
19. The learned counsel appearing on behalf of the petitioner had also stated that there has been an inordinate delay in the disposal of the representation, dated 19.8.2011, made on behalf of the detenu. The representation, dated 19.8.2011, had been rejected, only on 9.9.2011. However, no explanation has been given by the respondents, for the delay in disposing of the representation. Nothing has been stated in the counter affidavit filed on behalf of the first respondent stating the reasons for the delay. No particulars have been given regarding the disposal of the representation made to the Government, on 19.8.2011. By the letter, dated 10.9.2011, the Deputy Secretary to the Government, Home, Prohibition & Excise Department, Government of Tamil Nadu, had stated that the representation made on behalf of the petitioner, to the detaining authority, had been rejected. However, there is no clear explanation as to the delay in the disposal of the representation made on behalf of the petitioner, to the Commissioner of Police, Madurai City, the detaining authority. Further, the delay in the disposal of the representation, addressed to the State Government had not been explained, in Paragraph No.6 of the Counter Affidavit.
20. The learned counsel appearing on behalf of the petitioner had placed reliance on the decision of this Court, in Sumaiya Vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort.St.Geroge, Chennai-9 and another, 2007 (2) MWN (cri) 145 (DB), to state that the Detention Order passed by the first respondent will stand vitiated due to the unexplained delay in the disposal of the representation submitted on behalf of the detenu.
21. The learned counsel appearing on behalf of the petitioner had also relied on the decision of the Supreme Court, in Shiv Prasad Bhatnagar v. State of M.P. and another, (1981) 2 SCC 456, wherein, it has been stated that the grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices, any single one of which is sufficient to vitiate the order of detention. Accordingly, the Detention Order passed by the first respondent is vitiated due to irrelevant, stale and vague grounds, shown in the grounds of detention, while passing the Detention Order.
22. The learned counsel had relied on the recent decision of the Supreme Court, in Rekha vs. State of Tamil Nadu, (2011) 5 Supreme Court Cases 244, wherein, it has been held as follows:-
"Where a detention order is served on a person already in jail, there should be a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which 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 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, otherwise the bald statement of the authority cannot be believed. In this case, the detaining authority passed the detention order on the basis that no bail application of the accused was pending but in similar cases bail had been granted by the courts. But in the absence of details, this statement is mere ipse dixit, and cannot be relied upon. If these details were given by the respondent authority 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. The detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable materials to this effect. Hence, the detention order in question cannot be sustained.
Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g., that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was non-application of mind, that the grounds are vague, indefinite, irrelevant, extraneous, non-existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or that the reference was belated etc.,.
Article 22 cannot be read in isolation but must be read along with Article 19 and 21. Article 22(3)(b) which permits preventive detention is not itself a fundamental right but only an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial.
It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? Further, in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a "jurisdiction of suspicion". The detaining authority passes the order of detention on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution permits preventive detention, it cannot be held illegal. But the power of preventive detention must be confined to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long arduous and historical struggles, will become nugatory. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is mandatory and vital. Personal liberty protection under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. Procedural rights are not based on sentimental concerns of the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that the authorities will behave properly within rules distilled from long centuries of concrete experiences.
Whenever an order under a preventive detention law is challenged one of the questions of the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to. Hence, the observation in Para 34 in Haradhan Saha case, (1975) 3 SCC 198, cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried for a crime in a criminal court, a detention order can also be passed under a preventive detention law even though in the view of the Court the former is sufficient to deal with the situation. This point is of extreme importance, but seems to have been overlooked in the decisions of the Supreme Court."
23. The learned counsel appearing on behalf of the petitioner had also stated that the absence of details relating to some of the records placed by the sponsoring authority, before the detaining authority, would vitiate the detention order. He had also submitted that the absence of details in the statements made by the detaining authority, in the grounds of detention, would be mere ipse dixit and therefore, they cannot be relied on to sustain the order of detention passed against the detenu.
24. The learned counsel had also relied on the decision of the Supreme Court, in Pebam Ningol Mikoi Devi Vs. State of Manipur and others, (2010 (9) SCC 618,) wherein, it has been stated that `individual liberty' is a cherished right, one of the most valuable Fundamental Rights guaranteed by the Constitution to the citizens of this Country. It is of paramount importance to human dignity and human happiness. In the said decision the Supreme Court had also held that the subjective satisfaction of the detaining authority cannot be based, merely, on the basis of the statements made, under Section 161 of the Code of Criminal Procedure, 1973.
25. The learned Additional Advocate General 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 had 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 grounds justifying the detention, by the State Government, and the Advisory Board expressing its opinion, as to whether there is cause for detention or not, it should not be interfered with by the High Court, as the Court should not deal with the question on insufficient materials.
26. The learned counsel had relied on the decision of the Supreme Court, in D.M.Nagarja Vs. The Government of Karnataka and others, 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.
27. The learned counsel had also submitted that recourse to normal criminal law would not have the desired effect of effectively preventing the detenu from indulging in activities, which would be prejudicial to the maintenance of public order. The learned counsel had relied on the decision of the Supreme Court, in Rekha Vs. State of Tamilnadu (2011 (3) MLJ (Crl.)
422)(SC), to state that there could a valid assumption of existence of a real possibility of release of a person, who is already in custody, on bail, provided he had moved a bail petition before the appropriate Court, and it is pending.
28. The learned counsel 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 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.
29. The learned counsel had also submitted that, from a perusal of the records relating to the adverse cases, as well as the ground case, the detaining authority had come to the conclusion that the detenu could indulge in certain activities, which would be prejudicial to the maintenance of public order, if he is at large. The learned counsel had further submitted that, from the statements made by the witnesses, made under Section 161(3) Cr.P.C., it is clear that the detenu had indulged in activities resulting in the disturbance of public order.
30. In reply, the learned counsel appearing on behalf of the petitioner had pointed out that there has been an undue and unexplained delay in the disposal of the representation made on behalf of the petitioner, dated 19.8.2011. He had pointed out that the representation made on behalf of the petitioner, on 19.8.2011, had been dealt with, by the Deputy Secretary concerned, on 29.8.2011. Thereafter, the Minister for Electricity and Prohibition and Excise had dealt with the said representation, only on 9.9.2011. Thus, there has been a delay of 11 days in considering the representation, dated 19.08.2011, made on behalf of the petitioner. Four days, out of the 11 days, i.e. 31.8.2011, 1.9.2011, 3.9.2011 and 4.9.2011, were government holidays. As such, there has been an actual delay of 7 days in the disposal of the representation made on behalf of the petitioner. Such undue and unexplained delay is fatal to the detention order, dated 17.8.2011, passed by the first respondent .
31. Even though a number of grounds had been raised in the present Habeas Corpus Petition and various contentions had been put forth, by the learned counsel appearing on behalf of the petitioner, this court is convinced that it would be sufficient to consider only the issue relating to the delay in the disposal of the representation made on behalf of the detenu, on 19.8.2011, to set aside the detention order, dated 17.8.2011, passed by the first respondent.
32. 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)] 32.1. 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.
32.2. 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.
32.3. 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."
32.4.The Supreme Court, in Mahesh Kumar Chauhan alias Banti Vs. Union of India & Others, (1990) 3 SCC 148), while dealing with a preventive detention case, 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."
32.5. 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"
32.6. 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."
32.7. 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.
32.8. 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."
32.9. 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 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.
32.10. 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.Abudlla 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....."
32.11. 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.
32.12. 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."
32.13. 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."
32.14. 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)."
32.15. 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. 32.16. 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."
32.17. 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."
32.18. 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.
33. In the present case, the delay caused in the disposal of the representation, dated 19.08.2011, 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 Advocate General appearing on behalf of the respondents. In such circumstances, in view of the decisions cited supra, the detention order, dated 17.8.2011, passed by the first respondent, is set aside. The detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other case or cause.
csh/ssm To
1. The Commissioner of Police, Madurai City, Madurai.
2. The Secretary to Government State of Tamilnadu, Government of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-9.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.