Natarajan, J - (1.): This petition is filed by the detenu under Art.226 of the Constitution of India for issuance of a writ of habeas corpus for quashing the order of detention passed against him and for setting him at liberty. The impugned order was passed by the second respondent on 5th May, 1987 in exercise of the powers conferred under sub-S.(1) of S.3 of the Tamil Nadu Prevention of Dangerous Activities of Bottleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) hereinafter referred to as the Act, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
(2.)THE petitioner herein came to the adverse notice of the second respondent as bootlegger in view of the three instant cases referred to in the grounds of detention wherein the petitioner is said to have sold I.D. arrack to one Nesamony on 17.3.1987 and after consuming the same, the said Nesamony developed burning sensation in his eyes and got irritation and lost his consciousness. On the next day, when he became allright, after getting native treatment, he reported the matter to the Inspector of Police, PEW Unit, Kuzhithurai. THEreafter the Inspector conducted a Prohibition raid and the petitioner was found selling arrack to an unknown buyer and the petitioner was found in possession of four litres of I.D. arrack. THEreafter, the Inspector seized the sample of I.D. arrack under the cover of a mahazar, registered a case, sent the sample for chemical-analysis and report and after receiving the report of the Chemical examiner that the sample contained Chloral hydrate, that is, I.D. arrack, and that chloral hydrate is a poisonous intoxicating substance, the Inspector placed the materials before the detaining authority the second respondent, who, after perusing them arrived at the subjective satisfaction and passed the impugned order.
Though the said order has been challenged on many grounds, learned counsel, Mr. M.Karpagavinayakam, mainly confined his argument to only one question, namely, that in the instant case, though the petitioner sent a representation to Government on 22.6.1987, the order rejecting the said representation was communicated to the petitioner only on 3.8.1987 and in all stages, there is inordinate and unexplained delay and the delay itself vitiates the order of detention. In ground (C) of the petition, it is stated that the representation made to the Commissioner and Secretary to Government, Prohibition and Excise Department, Madras, has not at all been taken into consideration and the willful delay in taking up the said representation by the Advisory Board makes the petitioner to think that he could not get justice without any further loss of time. To rebut the said contention, in the counter affidavit filed by the first respondent, it is averred in Paragraph (3) as follows- '

It is submitted that a representation dated nil (certified by the superintendent, Central Prison Palayamkottai on 22.6.1987) from the detenu was received by the Government on 2.7.1987 through the Superintendent, Central Prison, Palayamkottai, after the review of the case of the detenu by the Advisory Board on 16.6.1987 was oven A copy of it was forwarded to the Collector and District Magistrate of Kanyakumari District at Nagercoil in Government letter dated 3.7.1987. The Parawar remarks of the Collector and District Magistrate of Kanyakumari were received by Government on 20.7.1987 in his letter dated 14.7.1987. The Government carefully examined the representation with the Parawar remarks of the Collector and District magistrate to Kanyakumari District The connected file was submitted by the section on 23.7.1987. The Under Secretary to Government passed order on 24th July 1987. The Secretary to Government passed orders on 24th July, 1987. The Minister (Education and Law) passed orders on 24th July, 1987. The Minister for Tourism, Prohibition and Electricity passed order on 26th July, 1987 rejecting the request of the detenu to release him from detention. The rejection order was issued in Government letter dated 27th July, 1987 and it was served on the detenu on 3rd August, 1987 through the Superintendent Central Prison, Palayamkottai
.' It is seen that at every stage, there was delay. Though the representation, according to the Superintendent, Central Prison, Palayamkottai, was given on 26.6.1987, it was received by the Government on 2.7,1987 and there is a delay of ten days. Similarly, Parawar remarks were called for from the second respondent on 3.7.1987 but the same was received only on 20.7.1987 and there is a delay of 17 days. After receiving the Parawar remarks, the order was passed on 27th July, 1987 after passing through various tables, and there is a delay of seven days. This delay is not properly explained except stating that after receiving the Parawar remarks, it was submitted on 23rd July, 1987 to the Under Secretary who submitted it to the Secretary on 24th July, 1987 and the Secretary submitted the same to the Minister (Education and Law) on 24th July, 1987 and the Minister (Education and Law) passed orders on 24th July 1987 and the Minister of Tourism, Prohibition and Electricity passed orders on 26th July, 1987 rejecting the request of the detenu and that the rejection order was issued on 27th July, 1987. In this connection, it is to be noted that for detention in custody on account of an order of detention passed against the detenu, every day spent in prison is a day of deprivation of his liberty and therefore every day's delay must be satisfactorily explained. It is well established that any representation received from the detenu must be disposed of with utmost expedition and it must receive active and continuous consideration and the failure to do so will certainly vitiate the order.
Our attention was drawn to various decisions of the Supreme Court and of this Court is respect of delay in considering the representations of the detenu by the detaining authority. In Harish Parva v. State of U.P., A.I.R.1981 S.C. 1126:1981 Crl. L.J. 750: (1981) 2 S.C.C.710: (1981) S.C.C.(Crl.) 589, in a case where there was delay in similar circumstance, their Lordships of the Supreme Court have observed: '

We may make it clear, as we have done, on numerous earlier occasions, that this Court does not look with equanimity with such delay when the liberty of a person is concerned. Calling comments from either departments, seeking the opinion of secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasis that it is the duty of the State to proceed to phasis that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the mater must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken. This not having been done in the present case, we have no option but to declare the detention unconstitutional.' Similarly in Raj Kishore Prasad v. State of Bihar, A.I.R.1983 S.C. 320: 1983 Crl. L.J. 629: (1982) 2 S.C.C. 10: (1982) S.C.C.(Crl.) 530, where there was a delay of 28 days from the date of representation till the date of disposal, it was observed that the District Magistrate the detaining authority, took more than nine days in examining the representation and in forwarding his comments and for this there is no explanation and in this connection it was held: 'Barring giving out the dates, there is not the slightest explanation for the delay by District Magistrate as also the State Government. Even the rotating of the files from the Deputy secretary to the Special Secretary and then the Chief Minister has taken unusually long time. On the whole we consider, in the circumstances of this case, delay of 28 days in disposing of the representation as inordinate delay which would vitiate the order.' In the instant case, though the Parawar remarks were called for on 3rd July, 1987, the District Magistrate second respondent submitted the same on 20th July, 1987. Absolutely, there is no explanation for such a delay of seventeen days.

Yet another decision relied on by the learned counsel for the petitioner is Kamla v. State of Maharashtra, A.I.R.1981 S.C. 814: 1981 Crl.L.J. 342: (1981) 1 S.C.C. 748, where the representation was made on 18th November, 1980 and the Government disposed of it on 13th December, 1980. In this connection, their Lordship held: 'There has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given. These are matters which must be clearly examined by Government. For the reasons given above, we hold that the continued detention of the detenu is void' Learned counsel drew our attention to the decision of the Division Bench of this court in Mary v. State, rep. by Commissioner and Secretary, Prohibition and Excise Dept., 1986 L.W.Crl.71. There was also a delay in submitting Parawar remarks on the representation made by the detenu.

Applying the ratio laid down in the above decisions, to the instant case, we find that there is a delay of ten days between the date of representation and the date of receipt of the representation by the Government, that is, from 22nd June, 1987 to 2nd July, 1987, and subsequently, when the Parawar remarks were called for on 3rd July, 1987 the same were received on 20th July, 1987 and there is a delay of 17 days and likewise after receipt of the Parawar remarks, the Government disposed of the representation rejecting it on 27th July, 1987, and there is a delay of seven days. Thus, there is unexplained inordinate delay in rejecting the representation of the petitioner by the Government. Since this inordinate delay has not been explained, the impugned order is vitiated.

(3.)IN the result, the writ petition is allowed, the order of detention passed by the first respondent is set aside and the petitioner is directed to be set at liberty forthwith if not required in any other case.