Important Point
Absence of the Minister at the Headquarters is not sufficient to justify delay in passing order on the representation made by the detenue.

Headnote:Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 -Section 3(1) r/w Section 11-Preventive detention - Delay in considering representation-Legal consequence of - Representation sent by detenue on 13.1.1998-Concerned departmental Secretary received file on 5.2.1998-On 9.2.1998 file was forwarded to Law Ministers’ approval-Law Minister rejected representation on 14-2-1998-Delay according to Government was that Law Minister was away on camp from headquarters -Not tenable-Absence of Minister at Headquarters is not sufficient to justify delay-File could be reached Minister with utmost promptitude in cases involving vitally important fundamental right of a citizen-Delay vitiated detention order-Continued detention not permissible.
       Held : 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 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. (Paras 8 & 9)
       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 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. (Para 10)
       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. (Para 12)

Judgment

Thomas, J.-Leave granted.

2. Smt. Rajammal, a thirty two year old lady 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 T.N. 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 T.N. 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.

3. 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:

4. The representation was sent by her on 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. Reliance was placed by the learned counsel on the decision of this Court in Mohinuddin v. District Magistrate, Beed1.

5. 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 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 Headquarters on the dates is between. Thus the file was not unnecessarily held up at any level but moved from level to level promptly.”

6. 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 Mohinuddin’s case (supra). A two Judge Bench in the said decision declined to accept the explanation that “the Chief Minister was pre-occupied 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.”

7. Learned counsel also cited an earlier two Judge Bench decision of this Court in Raghavendra Singh v. Superintendent, District Jail, Kanpur2 in which

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1998 Supreme(SC) 1233

Important PointAbsence of the Minister at the Headquarters is not sufficient to justify delay in passing order on the representation made by the detenue.

Cases Referred (5)

Important Point
Absence of the Minister at the Headquarters is not sufficient to justify delay in passing order on the representation made by the detenue.