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PETITIONER: RAJAMMAL

       Vs.

RESPONDENT: STATE OF TAMIL NADU AND ANOTHER

DATE OF JUDGMENT:       14/12/1998

BENCH: K.T. THOMAS, D.P.WADHWA, & SYED SHAH MOHAMMED QUADRI.

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT -------- THOMAS, J. --------- Leave granted. Smt.  Rajammal, 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. first   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. Learned 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 following: 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

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aforesaid  two  dates  and  there  is no valid justification thereto and hence the detention must be treated as vitiated. Reliance was placed by the learned counsel on  the  decision of this  Court  in Mohinuddin vs.  District Magistrate, Beed (1987 (4) SCC 58). In the 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:         "The  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. That is a case where delay was held be "wholly unexplained". A 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. That  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):         "In 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

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       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:         "IT  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.         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  disposed  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  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. What  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

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9.2.1998,   we  are  unable  to  find  out  any  explanation whatsoever as  for  the  delay  which  occurred  thereafter. Merely  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. Mr.  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:         "We 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 to 14.2.1998. We 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.