S. Rajeswaran, J.@mdashThis Habeas Corpus Petition is filed to call for the entire records relating to the detention order passed by the second respondent in P.D. No. 03 of 2013 dated 28-1-2013 and to quash the same and direct the respondents to produce the body of the detenu, namely, Briyani Raja alias Raja, aged about 24 years, before this Court and set him at liberty, now detained at Central Prison, Trichy. This Habeas Corpus Petition has been filed by the mother of the detenu, challenging the order of detention passed against her son under the Tamil Nadu Act 14 of 1982, under the proceedings No. P.D. No. 03 of 2013 dated 28-1-2013. On the following adverse cases as well as the ground case, the detention order has been passed against the detenu, under the provisions of the abovesaid Act.
I. Adverse cases:--
(i) In Crime No. 13 of 2010, on the file of the Thanjavur Town East Police Station, Thanjavur, for the offence under Sections 341, 294(b), 324 and 307 of IPC.
(ii) In Crime No. 72/2012, on the file of the Thanjavur Town East Police Station, Thanjavur, for the offence under Sections 141, 148, 342 and 302 of IPC.
(iii) In Crime No. 247 of 2012, on the file of the Thanjavur Town East Police Station, Thanjavur, for the offence under Sections 147, 148, 294(b), 324, 307 and 506 of IPC.
(iv) In Crime No. 592 of 2012, on the file of the Thanjavur Town East Police Station, Thanjavur, for the offence u/s 399 of IPC.
II. Ground case:--
(i) In Crime No. 52 of 2013, on the file of the Thanjavur Town East Police Station, Thanjavur, for the offence under Sections 294(b), 394, 506(ii), 307 and 324 r/w 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992.
2. Though may grounds have been raised in the petition to assail the order of detention, the learned counsel for the petitioner would restrict his arguments only with the following two grounds:--
(i) The impugned order was passed on 28-1-2013 and the booklet was furnished to him only on 3-2-2013, i.e. after the limitation period. The learned counsel for the petitioner would submit that as per Section 8 of the Tamil Nadu Act 14 of 1982, the booklet has to be supplied within five days from the date of detention. The relevant section reads as follows:--
8. Grounds of order of detention to be disclosed to persons affected by the order:--
(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
But, he adds that in this case, it has been given to the detenu beyond the period of limitation. Therefore, on that ground alone, the impugned order of detention is liable to be set aside.
(ii) The second ground of attack is regarding a delay in considering the representation made by the petitioner, which has not been explained at all by the Government. According to him, the representation was made on 11-3-2013 which was received by the Government on 14-3-2013. Though the remarks were called for on the same day, the remarks were received only on 27-5-2013 with a delay of 13 days. Therefore, this delay has caused enormous amount of prejudice to the detenu and it is a breach of constitutional imperative which would render the continued detention impermissible and illegal. According to him, the right to representation under Article 22(5) of the Constitution of India includes the right to expeditious disposal. In this case, there is a delay of 13 days, which has not been explained by the Government at all. Therefore, on the ground of delay also, this impugned order of detention is liable to be set aside.
3. In support of his contention, he relied on the judgment of the Hon''ble Supreme Court, reported in
4. The learned counsel would further add that admittedly two bail applications filed by the detenu in the ground case, one before the learned Judicial Magistrate No. 1, Thanjavur and another before the learned District Principal Sessions Judge, Thanjavur, on 22-1-2013 and 24-1-2013 respectively, as detailed in para 6 of the order of detention were dismissed on 22-1-2013 and 24-1-2013 respectively. Still, the detaining authority would state the mother of the detenu is taking action to take out the detenu of bail by filing bail application before the appropriate Court. Basis for arriving at the subjective satisfaction is, in a similar case, this Court has granted bail to another accused in another crime number. This according to the learned counsel is a mere ipse dixit statement without any cogent and relevant material. Moreover, the comparison made by the detaining authority to another case, where bail was granted by this Court is not that of a co-accused in the same case. It is a different case coming under a different crime number. Therefore, that is not sufficient to pass an order of detention. Moreover, the detaining authority has stated that the mother of the detenu is taking steps to file a bail application before the appropriate Court. This is also totally bereft of particulars and it is only an inference arrived at without any basis. Therefore, on this ground also, the impugned order is liable to be interfered with.
4-A. Per contra, learned Additional Public Prosecutor, while reiterating the averments made in the counter-affidavit filed on behalf of the second respondent, would submit that on the basis of cogent and relevant materials and considering the antecedents of the detenu only, the order of detention has been passed against the petitioner''s son. Further, the delay in considering the representation is due to the administrative delay and therefore, there is no infirmity or illegality in the detention order warranting interference from this Court.
5. We have considered the rival submissions carefully with regard to fact and citation including the counter-affidavit filed on behalf of the second respondent.
6. The first ground raised by the learned counsel for the petitioner is that the order of detention was passed on 28-1-2013 and the booklet was served on the detenu beyond the time prescribed under the Act. u/s 8 of the Tamil Nadu Act, 14 of 1982, the booklet has to be supplied within five days from the date of detention. Admittedly, in this case, it was supplied after the period of five days. Even in the counter-affidavit filed by the second respondent, it is admitted that the booklet has been served only on 3-2-2013, which is beyond the period of 5 days stipulated. Therefore, there is a delay in serving the booklet to the detenu, which has caused great prejudice to the detenu in not being able to make effective representation within the time stipulated. This violates Article 22 of the Constitution of India. Apart from that, the pro forma submitted by the learned Additional Public Prosecutor has been perused by us. It is made very clear that the representation made by the petitioner on 11-3-2013 has been received by the Government on 14-3-2013 and the remarks were called for on the same day. But the remarks were received only on 27-3-2013. In between, there is a delay of 13 days. Out of which, four days are holidays. Leaving these four days, still there is a delay of nine days, which remains unexplained by the Government in considering the representation made by the petitioner. This would certainly vitiate the order of impugned detention order.
7. In the judgment, reported in
7. 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 Consideration 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 pre-empted from explaining the delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable caused. This position has been well delineated by a Constitution Bench of this Court in
It is a constitutional mandate commanding the authority concerned to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words ''as soon as may be'' occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and dispose of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the detention law concerned, within which the representation should be dealt with. 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.
8. The position, therefore, now is that 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.
8. Thus, it is trite law that there is an obligation 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.
9. In addition to that, the recent judgment of the Hon''ble Supreme Court, reported in Ammu Sabeena v. State of Kerala, 2011 STPL (Web) 999 SC, the Hon''ble Supreme Court has held that the history of personal liberty, as it 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.
10. Applying the above said principles, there is a clear breach of constitutional imperative which would render the continued detention impermissible and illegal. We therefore have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disparity of the representation and also the delay in supplying the booklet to the detenu.
11. Regarding the contention of non-application of mind, we find that the detaining authority in the order of detention has admitted that the two bail applications filed by the detenu, as referred above, have been dismissed. But, still the detaining authority would state that the mother of the detenu is taking steps to file bail application before the appropriate Court. This is a bald statement without any particulars and it is merely an ipse dixit of the authority. In the absence of material particulars, the subjective satisfaction is merely a ruse for issuance of the impugned order of detention. It is needless to add that personal liberty of a person is too precious to be interfered with. Hence, the detaining authority passed the order of detention on a mere supposition that the mother of the detenu is taking steps to file the bail application in the ground case. Supposition cannot take the place of facts, which are necessary to establish a case which warrants detention of a person without trial. Further, when no application is filed, it is to be construed that there is no likelihood of the detenu coming out on bail. But, to state that the mother is taking steps and therefore, she would come on bail is nothing but an ipse-dixit statement without any basis. This would be indicative of the non-application of mind and it is only an expression of the impression made by the authority without any material whatsoever. Therefore, on this ground alone, the impugned order of dismissal is liable to be set aside. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the third respondent is quashed. The detenu is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
