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1988 DIGILAW 495 (MAD)

Kannabiran v. State

1988-12-15

DAVID ANNOUSSAMY, JANARTHANAM

body1988
Judgment : David Annoussamy, J. This is a petition by the father of the detenu under Art.226 of the Constitution of India, for the issuance of a writ of habeas corpus quashing the order of detention and setting the detenu at liberty. 2. The order of detention was passed by the District Collector and Magistrate, North Arcot District, Vellore on 5.10.1987 under the Tamil Nadu Act 14 of 1982 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order as a bootlegger. 3. The main ground urged by the learned counsel appearing for the petitioner is that there is considerable delay in considering the representation and that such a delay vitiates the order of detention. Some explanation for the delay has been offered by the respondents. 4. The learned counsel for the petitioner would point out that in the explanation submitted during which the representation was not under the active consideration. Those periods are from 28.1.1988 to 11.2.1988, the first date being the one on which remarks were called from the Collector and the second one being the date on which the remarks were received. The second period runs from 15.2.1988 to 19.2.1988, the time taken by the Adviser to the Governor to pass the order. 5. We shall first take into consideration the earlier period, which is the longer. Regarding this period, the explanation tendered by the 2nd respondent is as follows: “The copy of the representation of the detenu was received in the office of this respondent on 30.1.1988, 31.1.1988 was Sunday. Para war remarks were called for from the sponsoring authority. In view of the fact that the police was busily engaged in bandobust duty due to the unrest prevailed in the locality consequent to the dissolution of the Government, the police could offer their remarks only on 8.2.1988 (6.2.1988 and 7.2.1988 were holidays being Saturday and Sunday). The para war remarks were forwarded to the 1st respondent on 8.21988 itself.” 6. As pointed out by the learned counsel for the petitioner, the process of getting the remarks from the Collector took about two weeks. After a long time taken for correspondence, there is clearly a period going from 30.1.1988 to 8.2.1988 during which period the matter was pending before the second respondent. As pointed out by the learned counsel for the petitioner, the process of getting the remarks from the Collector took about two weeks. After a long time taken for correspondence, there is clearly a period going from 30.1.1988 to 8.2.1988 during which period the matter was pending before the second respondent. He would attempt to explain the delay by stating that he in his turn called for the remarks from the police officials. He would explain the delay in getting that remark on account of the unrest which prevailed in the locality and the consequent busy engagement of the police to deal with the situation. But, to make the matter convincing, the second respondent should have obtained an affidavit from the concerned police officer explaining when he received the request for remark from the Collector and when he answered it and the reason for the delay. Notwithstanding that, it will be seen that in the explanation tendered by the 2nd respondent, he has omitted to explain when he called for the remarks from the police officer (sponsoring authority). Therefore, it is not known how much delay had occurred for calling for the remarks from the concerned authority. We are, therefore, not satisfied by the explanation given by the second respondent in respect of the delay. 7. The order of detention is passed by the detaining authority without any previous notice to the person concerned or without asking him to show cause why he should not be detained. As an antidote to this, Art.22 has provided a very valuable right to the detained person of making a representation to the detaining authority asking him to set aside the order and giving reason for the same. From that time the order of detention is under attack. The learned Public Prosecutor himself has stated that about 20% representations are accepted by the Government and the detention order set aside. Therefore, as soon as the representation is made, the detained person is entitled to think that if his case is good, he may be released forthwith. However, the order of detention is allowed to subsist till the representation is disposed of. That is why the representation should be considered with utmost diligence. Therefore, as soon as the representation is made, the detained person is entitled to think that if his case is good, he may be released forthwith. However, the order of detention is allowed to subsist till the representation is disposed of. That is why the representation should be considered with utmost diligence. It is well-settled now that the delay in considering the representation has to be considered differently from the delay occurring at other stages and that the consideration of the representation must be more expeditious. As in this case, we find that at the stage of getting remarks from the subordinates there is unexplained and considerable delay, the order of detention is vitiated. 8. In the result, the petition is allowed, the order of detention is set aside and the detenu is directed to be set at liberty forthwith unless required otherwise.