@JUDGMENTTAG-ORDER
R. Mala, J.@mdashIn this Habeas Corpus Petition, the Petitioner - brother of the Detenu challenges the order of detention passed by the 1st
Respondent, whereby the the Detenu was detained, branding him as a ""Goonda"", under the provisions of the Tamil Nadu Prevention of Dangerous
Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video
Pirates Act, 1982 (in short ""Tamil Nadu Act 14/1982).
2. The Detenu had earlier come to adverse notice in two cases, as detailed below.
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Sl. No. Police Station and Crime No. Provisions of Law
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1 Veerakeralampudur Police Station u/s 294(b), 323
Crime No. 68/2007 and 506(i) IPC
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2 Alangulam Police Station Crime u/s 341, 294(b), 353,
No. 801/2008 506(ii) IPC and 3, 4 of Tamil
Nadu Public Property Prevention
of Damage and Loss Act.
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The ground case in Crime No. 01/2009 under Sections 341, 294(b) and 307 IPC on the file of Pappakudi Police Station relates to the occurrence
on 05.01.2009. On 5.1.2009 at 15.00 hours, the detenu along with his associates is alleged to have threatened and attacked with aruval when one
Alagudurai came with his friend Nagamuthu near Nanthanthattai diversion demanding coolie for having repaired bike and thereby, the act of the
detenu created a feeling of insecurity in the minds of the public standing there. On being satisfied that the Detenu is habitually committing crimes and
also acting in a manner prejudicial to the maintenance of public order and as such he is a ""Goonda"", the 1st Respondent passed the impugned
order of detention.
3. Even though several contentions were raised and argued as well, the learned Counsel for the Petitioner confined his arguments only on the
question of delay in consideration and disposal of the representation. Learned Counsel for the petitioner submitted that unexplained delay in
consideration and disposal of the representation would vitiate the Detention Order.
4. We have heard the learned Additional Public Prosecutor. Learned Additional Public Prosecutor submitted that there were a number of public
holidays and the authorities have explained the delay and as such there is no unexplained delay vitiating the detention order.
5. Article 22(5) of the Constitution of India casts an imperative duty upon the authorities to communicate the grounds of detention and also afford
reasonable opportunity to the detenu so as to afford him the right of making representation. Such right of making representation is inclusive of the
right of consideration and disposal of the representation within a reasonable time. Any unexplained or inordinate delay in the consideration of the
representation has the effect of vitiating the Detention Order.
6. In The District Collector Vs. Smt. Shaik Hasmath Beebi, , the Supreme Court has held as follows:
Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as
possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article
22(5) in itself does not say to whom a representation could be made or who will consider the representation, but because of the language of Article
22(5) and because of the fact that an order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure
of time taken by the appropriate authority for considering a representation, it should be considered and disposed of by the Government as soon as
it is received.
7. In Rajammal Vs. State of Tamil Nadu and Another, , the Apex Court has held that the representation was received by the Secretary to the
Government on 05.02.1998, the Government which received the remarks from different authorities submitted the relevant files before the Under
Secretary for processing it on the next day. Thereafter, the files were submitted to the Minister, who received it on tour. Finding that there was no
valid explanation for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiated the detention.
8. In the instant case, the chart furnished by the learned Additional Public Prosecutor discloses that though the Minister for PWD and Law had
dealt with the File on 24.02.2009, the rejection letter came to be prepared only on 04.03.2009, after a delay of eight days. Learned Additional
Public Prosecutor submitted that there were two public holidays in between 24.02.2009 and 04.03.2009 and as such, there was only six days
delay. In our considered view, the delay of six days remain unexplained in consideration and disposal of the representation which would have the
effect of vitiating the detention order.
9. Contending that even a delay of six days in disposal of representation would have the effect of vitiating order of detention, learned Counsel for
the petitioner has drawn our attention to the decision of this Court in 2007 (2) MWN (Cr.) 145 - Sumaya v. The Secretary to Govt., wherein the
Division Bench has observed as under in paragraphs 5.3 and 5.4 as under:
5.3. The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government.
Expedition is the rule and delay defeats mandate of Article 22(5) of the Sri Ram Skukrya Mhatre Vs. R.D. Tyagi and Others, .
5.4. Any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal, vide Tara
Chand Vs. State of Rajasthan and Others, ; and Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, .
We are in respectful agreement with the view taken by the Division Bench.
10. Law is well settled that since personal liberty of a person is involved in the preventive detention, the authorities concerned are required to deal
with the representation with utmost dispatch and promptitude, without any unnecessary delay. Right to expeditious disposal of the representation
by the State Government includes the right to communication of the result of the representation. Further, preparation of rejection letter is only a
ministerial work, which does not require any judicious consideration. The unexplained delay in the consideration and disposal of the representation
would have the effect of vitiating the detention order and accordingly the detention order is liable to be quashed.
11. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention in M.H.S. Condfl. No. 05/2009, dated 12.01.2009,
passed by the 1st respondent, is quashed. The Detenu Kannan alias Suresh Kannan is directed to be released forthwith, unless his presence is
required in connection with any other case.
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