TAMILARASAN ALIAS TAMIL 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 17.4.2007 made in Memo No.163/2007 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.) ON 7.4.2007, one Eswardoss was confronted by the detenu and three others, while he was proceeding at the junction of Dhadha Muthiyappan Street and Nattu Pillaiyar Koil Street, and at the knife point, demanded money and when the said Eswardoss resisted, the detenu and others took away Rs.190/- and also snatched his cell phone and gold ring and threatened him with dire consequences. Petrified, the said Eswardoss raised hue and cry, on hearing which, the public gathered and attempted to catch hold of the detenu and others. ON seeing the public, the detenu and others wielded their knives and also hurled soda bottles all over the place, which created terror and panic at the spot. Taking advantage of the said situation, when the detenu and others attempted to escape, the police with the aid of the public, apprehended them at the spot. ON the basis of the complaint given by the said Eswardoss, a case was registered in Crime No.129 of 2007 under Sections 341, 336, 427, 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.