1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.9 of 2011 Ramzan Begum .. Petitioner vs. 1.The Additional Secretary, 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 District Collector and District Magistrate, Madurai District, Madurai. 4.The Inspector of Police, CS.CID, Madurai. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records pertaining to the order of detention passed by the third respondent in his proceedings C.M.P.No.14/2010(CS) dated 29.12.2010 and quash the same as illegal and produce the detenu, namely Sheik Meeran, S/o.Mohammed Hanifa, aged about 42 years, who is confined in Central Prison, Madurai before this Court and set him at liberty. For petitioner : Mr.D.Venkatesh for M/s.T.Leninkumar For 1st respondent : Mr.Fernandes Rathinaraja For respondents 2 to 4: Mr.N.Senthur Pandian, Addl.Public Prosecutor ORDER (Order of the Court was made by G.M.AKBAR ALI, J) The petitioner is the wife of the detenu, namely, M.Sheik Meeran, who was detained by an order of the third respondent dated 29.12.2010 in https://hcservices.ecourts.gov.in/hcservices/ 2 C.M.P.No.14 of 2010 under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No.7 of 1980) branding him as a “Black Marketeer”. 2. Advancing the arguments assailing the order of the detention, the learned counsel appearing for the petitioner raised the following grounds:- (i) There is an unexplained delay of nine days in considering the representation of the detenu and therefore, the detention order is vitiated. (ii) There was no application of mind on the part of the detaining authority while passing the order of detention. When the application for bail in Cr.M.P.No.8260 of 2010 dated 24.12.2010 was pending before the Judicial Magistrate Court No.III, Madurai, the observation of the detaining authority in the detention order in Paragraph No.5 that "... I am also aware that there is real possibility that Thiru. M.Sheik meeran may come out on bail filing a bail application before the Court for the above case, since in similar cases the concerned Court or Higher Courts grant bail after lapse of time...." shows the non-application of mind on the part of the detaining authority. When already an application was filed for bail, it is not possible for the detenu to file another bail application in the same case before the same Court. 3. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and perused the records. 4. It is seen from the Proforma produced by the learned Additional Public Prosecutor before this Court that the representation of the detenu was received on 5.1.2011, remarks were called for on 06.1.2011 but remarks were received only on 20.1.2011. Thus, there was a delay of 14 days, out of which, 6 days happened to be holidays i.e. 8.1.2011, 9.1.2011 and from 14.1.2011 to 17.1.2011 and in effect, there was a delay of 9 days in considering the representation, which remains unexplained. 5. Such unexplained delay in considering the representation would amount to deprivation of making effective representation guaranteed under Article 22(5) of the Constitution of India and therefore, the impugned order of detention is liable to be quashed. 6. Apart from that, it is seen in Paragraph No.5 of the detention order that "the detenu has filed a bail application in Cr.M.P.No.8260 of 2010 dated 24.12.2010 before the Judicial Magistrate Court No.VII (I/c) Judicial Magistrate No.III, Madurai, and the bail petition was pending by the Judicial Magistrate No.III, Court Madruai. I am also aware that there is real possibility, that Thiru. M.Sheik Meeran may come out on bail filing a bail application before the Court for the above case, since in similar cases the concerned Court or Higher Courts grant bail after lapse of time." When the bail application was pending, the observation made by the detaining authority that there was a real possibility of the detenu coming out on bail by filing a bail application in the above case is only an expression of apprehension passing in the mind of the detaining authority without any basis or material much less cogent https://hcservices.ecourts.gov.in/hcservices/ 3 material. Under the circumstances, the order of detention has got to be set aside. 7. Accordingly, the detention order in C.M.P.No.14/2010(CS) dated 29.12.2010 passed by the third respondent is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To 1.The Additional Secretary, 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 District Collector and District Magistrate, Madurai District, Madurai. 4. The Superintendent, Central Prison, Madurai. 5. The Joint Secretary to Government, Public (Law & Order) Fort St., George, Chennai-9. 6.The Inspector of Police, CS.CID, Madurai. 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. asvm SR : 08.04.2011 : 3p/8c H.C.P.(MD)No.9 of 2011 16.03.2011 https://hcservices.ecourts.gov.in/hcservices/