DURAIAH ALIAS DURAI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) (Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein.) The petitioner, aggrieved by the order of detention dated 20.12.2006 made in Memo No.345/BDFGISSV/2006 passed by the second respondent under the provisions 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), branding him as a Goonda, filed the above petition seeking to quash the order of detention and to direct the respondents to produce him, now confined at Central Prison, Puzhal, Chenani, before this Court and set him at liberty.

(2.) THE ground case, which led the detaining authority to pass the order of detention is that while on 11.12.2006, one Deva Anandan was proceeding at the junction of Madhavaram High Road and Pallavan Road, the detenu and another confronted him and threatened him to part with some money and when the same was refused, the detenu and another brandished their knives and took away Rs.1,000/- and wrist watch as well as the cell phone of Deva Anandan. On hearing the alarm raised by Deva Anandan, the public gathered and tried to apprehend the accused, who, on seeing the public, wielded their knives and also pelted stones on the public. On seeing the atrocious activities, the public ran here and there, which created terror and panic at the spot and taking advantage of the same, the accused ran away from the place. On the basis of the complaint given by the said Deva Anandan, a case was registered in Crime No.1815 of 2006 under Sections 392, 397 and 506(2) I.P.C.

(3.) 1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point. 5.2. Article 22(5) of the Constitution of India suggests that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under the relevant provisions of law, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 . 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 Constitution of India, vide Ram Sukrya Mhatre v. R.D. Tyagi, 1992 Supp (3) SCC 65. 5.4. Any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650. 5.5. 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 pre-empted 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 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, vide Rajammal v. State of T.N., (1999) 1 SCC 417.