Vs. State of Tamil Nadu & Anr  INSC 604 (14 December 1998)
Thomas, D.P.Wadhwa, & Syed Shah Mohammed Quadri. Thomas, J.
a thirty two year old is kept under detention dubbing her as a "bootlegger",
as per the detention order passed under Section 3(1) of the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982
(Tamil Nadu Act 14/1982) (hereinafter referred to as the TN Act). The aforesaid
order was passed by the Government of Tamil Nadu on 18.12.1997 and she
continues to be in detention. A representation forwarded by her on 13.1.1998,
was rejected by the Government of Tamil Nadu. She filed a habeas corpus
petition before the High Court of Madras in which the detention order was
challenged mainly on three grounds.
is that there was delay in considering the representation submitted on her behalf.
Second is that her family members were not informed about the place of
detention nor even about the detention. The third is that report of the
Advisory Board was not submitted within the statutory period of seven days as
contemplated under Section 11 of the TN Act. A Division Bench of the Madras High
Court has repelled all the aforesaid three contentions and dismissed her
petition. This appeal has, therefore, been filed by special leave challenging
the judgment of the High Court.
counsel for the appellant has, however, confined the challenge to the first
ground aforementioned, namely, there was delay in considering the
representation submitted on behalf of the detenu. The factual position is the
representation was sent by her 13.1.1998 which after passing through the
prescribed route reached the Secretary to the Government of Tamil Nadu
(Prohibition and Excise Department) on 5.2.1998. The Minister concerned
rejected the representation on 14.2.1998. According to the learned counsel, the
delay is the interval between the aforesaid two dates and there is no valid
justification thereto and hence the detention must be treated as vitiated.
was placed by the learned counsel on the decision of this Court in Mohinuddin
vs. District Magistrate, Beed (1987 (4) SCC 58).
affidavit sworn to by Sri R. Poornalingam, IAS, Secretary to the Government,
(Prohibition and Excise Department) in answer to the contentions of the
appellant in the Special Leave Petition the delay is sought to be explained in
the following lines:
remarks were submitted with the relevant files before the Under Secretary of
the concerned Department on 6.2.1998. The file was considered by the Under
Secretary on 9.2.1998 as 7.2.1998 and 8.2.1998 were holidays in view of
Saturday and Sunday and sent to Deputy Secretary on 9.2.1998 itself. Thereafter
the file was considered by the Deputy Secretary on 9.2.1998 itself. Thereafter
the file was considered by the Deputy Secretary who in turn sent the same to
the Minister for Law for approval. The representation was considered and
rejected by the Minister for Law on 14.2.1998 as he was away on camp from
Headquarter on the dates in between. Thus the file was not unnecessarily held
up at any level but moved from level to level promptly." According to the
learned counsel it is no explanation that the Minister concerned was away on
camp from the Headquarters, particularly since a similar stand was disapproved
in Mohinnuddin's case (supra). A two Judge Bench in the said decision declined
to accept the explanation that "the Chief Minister was preoccupied with
very important matters of the State which involved tours as well as two Cabinet
meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986."
Learned Judges further observed that "in view of the wholly unexplained
and unduly long delay in the disposal of the representation by the State
Government, the further detention of the appellant must be held illegal and he
must be set at liberty forthwith." Learned counsel also cited an earlier two
Judge Bench decision of this Court in Raghavendra Singh vs. Superintendent,
District Jail, Kanpur (1986 1 SCC 650) in which similar
delay of a few days in considering the representation was found to have
vitiated the detention.
is a case where delay was held be "wholly unexplained".
three Judge Bench of this Court in Rumana Begum vs. State of Andhra Pradesh (1993 Supp. 2 SCC 341) disapproved
the delay in considering the representation on the mere ground that the
representation on the mere ground that the representation was not addressed to
the Chief Secretary.
was a case where representation was sent to the Governor. Hence it was found
that there was unexplained and unreasonable delay and consequently the
detention was held vitiated. We are reminded of the following observations made
by this Court in Kundanbhai Dulabhai Sheikh vs. District Magistrate, Ahmedabad
(JT 1996 (2) SC 532 = 1996 (3) SCC 194):
spits of law laid down above by this Court repeatedly over the past three
decades, the Executive, namely, the State Government and its officers continue
to behave in their old, lethargic fashion and like all other files rusting in
the secretariat for various reasons including red tapism, the representation
made by a person deprived of his liberty, continue to be dealt with in the same
fashion. The government and its officers will not give up their habit of
maintaining a consistent attitude of lethargy. So also, this Court will not
hesitate in quashing the order of detention to restore the 'liberty and freedom'
to the person whose detention is allowed to become bad by the government itself
on account of his representation not being disposed of at the earliest."
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. This
position has been well delineated by a constitution Bench of this Court in K.M.
Abdulla Kunhi and B.L. Abdul Khader vs. Union of India and others (1991 (1) SC
476). The following observations of the Bench can profitable be extracted here:
is a constitutional mandate commanding the concerned authority to whom the detenu
submits his representation to consider the representation and dispose of the
same as expeditiously as possible.
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 disposed of with a sense of urgency without an
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 concerned detention law, 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." 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, it any, in disposing 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.
happened in this case was that the Government which received remarks from
different authorities submitted the relevant files before the Under Secretary
for processing it on the next day. The Under Secretary forwarded it to the
Deputy Secretary on the next working day. Thus there is some explanation for
the delay till 9.2.1998. Thereafter the file was submitted before the Minister
who received it while he was on tour. The Minister passed the order only on
14.2.1998. Though there is explanation for the delay till 9.2.1998, we are
unable to find out any explanation whatsoever as for the delay which occurred
stating that the Minister was on tour and hence he could pass orders only on
14.2.1998 is not a justifiable explanation, when the liberty of a citizen
guaranteed under Article 21 of the Constitution is involved. Absence of the
Minister at the Headquarters 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.
V.R. Reddy, learned senior counsel for the State of Tamil Nadu referred to a decision of this
Court in Mrs. U. Vikayalakshmi vs. State of Tamil Nadu and another (AIR 1994 SC 165) to contend that it could not be said that
there was any delay in considering the representation from 9.2.1998 to
14.2.1998. In that case also the detention was under Section 3(1) of the Act.
The detenu made representation again the detention which was received by the
State Government conveyed the rejection of the representation on 23.6.1992. The
detenu received the rejection order on 26.6.1992. It was submitted that there
was an inordinate long delay in dealing with the representation and that the detenu
was entitled to have the detention order quashed. This Court noticed that in
the counter affidavit filed by the Deputy Secretary to the State Government the
manner in which the representation was dealt with after its receipt on
18.5.1992 had been stated in detail. The Court then observed:
have perused the stages through which the file containing the representation
was dealt with promptly and there was no indifference lethargy or negligence in
dealing with the same. The file was not unnecessarily held up at any level but
moved from level to level promptly. We are, therefore, satisfied that the
explanation tendered by the Deputy Secretary in this behalf is acceptable and
does not detray any lack of sense or urgency in dealing with the representation.
We, therefore, do not see any merit in the first contention." In the
present case, however, there is no explanation forth coming as to why the
representation could not be dealt with by the Minister concerned from 9.2.1998
are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998
remains unexplained and such unexplained delay has vitiated further detention
of the detenu. The corollary thereof is that further detention must necessarily
be disallowed. We therefore allow this appeal and set aside the impugned
judgment. We direct the appellant-detenu to be set at large forthwith.