1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.04.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI Habeas Corpus Petition (MD) No.163 of 2011 Kasthuri, W/o.A.Lawrence ... Petitioner vs. 1.The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krishi Bhavan, New Delhi-110 001. 2.The Secretary, Government of Tamilnadu, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-9. 3.The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli. 4.The Inspector of Police, CS CID, Tiruchirappalli. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of habeas corpus calling for the records pertaining to the order of detention passed by the 3rd respondent in his proceedings C.P.O./TRC/B.M/D.O.No.01/2011, dated 31.01.2011, quashing the same as illegal and consequently setting the detenu A.Lawrence, aged 43, S/o.Arulsundaram, now confined in Cengtral Prison, Triochy, at liberty. For Petitioner : Mr.T.Dhandapani For Respondents : Mr.M.Daniel Manoharan, 2, 3 & 4 Addl.Public Prosecutor. For Respondent-1 : Mr.P.Krishnasamy, Sr.Panel counsel for Central Government. https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner, who is the wife of the detenu, has filed this petition challenging the order of detention, dated 31.01.2011, clamped by the 3rd respondent under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7 of 1980), on the detenu branding him as a "Black Marketeer" and directing him to be detained at the Central Prison, Tiruchirappalli. 2. Learned counsel appearing for the petitioner submitted that though many grounds have been raised in the petition, the petition is confined to the only ground of delay in considering the representation made by the detenu, dated Nil., received by the Government on 08.02.2011, which, according to the petitioner, vitiates the detention order. Learned counsel for the petitioner submitted that there is a huge delay of more than 26 days on the part of the detaining authority in furnishing the remarks. Learned counsel submitted that the delay occurred in furnishing the remarks remains unexplained and this unexplained delay vitiates the order of detention. 3. Learned Additional Public Prosecutor submitted that there were ten holidays in between the date of calling for remarks and the remarks reaching the Government and hence there is no delay in the consideration and disposal of the representation of the detenu. 4. We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5. The learned Additional Public Prosecutor produced before us the pro-forma containing dates and events. It is seen from the said pro-forma, the representation of the detenu, dated Nil, had been received by the Government on 08.02.2011. Though the Government had called for remarks from the detaining authority on 11.02.2011, such remarks were received by the Government only on 10.03.2011. Thus, there is 26 days delay in furnishing the remarks to the Government. Though, it is submitted by the learned Additional Public Prosecutor that there were ten holidays in between 11.02.2011 and 10.03.2011, still there were sixteen working days and there is no explanation for such a long delay occurred in furnishing remarks to the Government. 6. In District Collector vs. S.K. Hasmath Beevi, reported in 2001(5) SCC 401, the Supreme Court has held as follows: "Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article 22(5) in itself does not say to whom a https://hcservices.ecourts.gov.in/hcservices/ 3 representation could be made or who will consider the representation, but because of the language of Article 22 (5) and because of the fact that an Order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure of time taken by the appropriate authority for considering a representation, it should be considered and disposed of by the Government as soon as it is received." 7. In Rajammal Vs. State of Tamil Nadu, reported in 1999(1)SCC 417, the Apex Court has held that the representation was received by the Secretary to the government on 05.02.1998, the government which received the remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. Thereafter, the files were submitted to the minister, who received it on tour. Finding that there was no valid explanation for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiated the detention. 8. Contending that even a delay of three days in disposal of representation would have the effect of vitiating order of detention, learned counsel for the petitioner has drawn our attention to the decision of this Court in 2007(2)MWN(Cr.)145 – Sumaya Vs. The Secretary to Govt., wherein the Division Bench has observed as under in paragraphs 5.3 and 5.4 as under: "5.3. The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India, vide Ram Sukrya Mhatre v.R.D. Tyagi, 1992 Supp.(3) SCC 65. 5.4. Any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of Rajasthan, 1980(2) SCC 321, and Raghavendra Singh v. Supdt., Dist.Jail,l 1986(1) SCC 650." We are in respectful agreement with the view taken by the Division Bench. 9. Law is well settled that since personal liberty of a person is involved in the preventive detention, the authorities concerned are required to deal with the representation with utmost dispatch and promptitude, without any unnecessary delay. Right to expeditious disposal of the representation by the State Government includes the right to communication of the result of the representation. The unexplained delay in the consideration and disposal of the representation would have the effect of vitiating the detention order and accordingly the detention order is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 4 10. Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 31.01.2011, passed by the 3rd respondent in his proceedings CPO/TRC/B.M./D.O.No.01/2011, is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krishi Bhavan, New Delhi-110 001. 2.The Secretary, Government of Tamilnadu, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-9. 3.The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli. 4.The Inspector of Police, CS CID, Tiruchirappalli. 5.The Superintendent, Central Prison, Trichy. 6.The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai – 9. 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.P.Krishnasamy, Advocate (SR.No.14769) Order in H.C.P.(MD)No.163 of 2011 Dated: 25.04.2011 gb NSV/16.6.11/4P/9C https://hcservices.ecourts.gov.in/hcservices/