1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.07.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition (MD) No.357 of 2011 R.Chithra ... Petitioner vs. 1.The Additional Secretary, Department of Consumer Affairs, Government of India, Room No.270, Krishi Bhavan, New Delhi-110 001. 2.State of Tamil Nadu, rep.by the Secretary to Government, Food Co-operative & Consumer Protection, Department, Fort St., George, Chennai-09. 3.The District Collector and District Magistrate, Pudukkottai District, Pudukkottai. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus, calling for the records in detention order passed in P.D.O.No.04/2011, dated 25.04.2011 on the file of the 3rd respondent herein and setting aside the same as illegal and directing the respondents to produce the body of the petitioner's husband namely Rajagopal, son of Vadivel, aged about 36/2011, before this Court and set him at liberty from Central Prison, Trichirappalli. For Petitioner : Mr.K.Kumaravel For Respondents : Mr.P.Jothi, Addl.Public Prosecutor. For R1 : Mr.A.John Xavier[CGSC] O R D E R (Order of the Court was made by P.JYOTHIMANI,J.) The petitioner, who is the wife of detenu, has filed this petition challenging the order of detention, dated 25.04.2011, clamped on her husband by the third respondent under the Tamil Nadu Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, branding him as a "Black Marketeer" and directing him to be detained at the Central Prison, Tiruchirappalli. https://hcservices.ecourts.gov.in/hcservices/ 2 2.Mr.R.Alagumani, learned counsel appearing for the petitioner would challenge the detention order mainly on the ground of delay in considering the representation made by the detenu. According to him, though the Government has called for remarks from the detaining authority on the representation of the detenu as early as on 05.05.2011, such remarks were received by the Government only on 16.05.2011, after a delay of eleven days, which vitiates the detention order. In support of his contention, he relied on the judgment of a Division Bench of this Court in Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-9 and another reported in (2007) (2) MWN (Cr.) 145 (DB). 3.On the other hand, it is the contention of Mr.P.Jothi, learned Additional Public Prosecutor, that there has been some delay in furnishing the remarks by the detaining authority to the Government. According to him, at the level of Under Secretary, Deputy Secretary as well as the Minister concerned, there has been no delay. 4.We have considered the rival contentions and given our anxious thought to the issue involved in the above case. 5.At the outset, it is to be stated that on a reference to the pro-forma submitted by the learned Additional Public Prosecutor, it is seen that the petitioner was detained on 25.04.2011 under the impugned order of detention passed by the second respondent. Thereafter, the petitioner has made a representation and the same has been received by the Government on 05.05.2011. Remarks were called for from the detaining authority on the same day i.e., on 05.05.2011 and such remarks were received by the Government only on 16.05.2011 and there has been a delay of eleven days in furnishing the remarks. There was no intervening holidays and there is no explanation for such delay. In addition to that, learned counsel for the petitioner has also referred to the impugned order to the effect that the third respondent has not chosen to state anything about the real possibility or very likely or most likely nature of the petitioner in branding as Black Marketeer. 6.On a reference to the impugned order, we find that the third respondent has not chosen to use the word "compelling necessity" for the purpose of invoking Section 3(1) of the Tamil Nadu Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. In K.Thirupathi Vs.District Magistrate and District Collector, Tiruchirapalli District at Tiruchirapalli and another reported in 2005(4) CTC 497, the Full Bench of this Court while holding that even though the actual usage of the word 'imminent' is not necessary and the other convincing expressions like "real possibility', 'very likely', or 'most likely' can be used by the detaining authority. In paragraph 29 of the Full Bench judgment, it is held as follows: "29.In view of the above, we hold that strict insistence of the usage of the word "imminent" is not necessary and the other convincing expressions like "real possibility", "very likely" or "most likely" can be used by the detaining authority to reflect its satisfaction with regard to immediate release of the detenu on bail. We answer the Reference accordingly". https://hcservices.ecourts.gov.in/hcservices/ 3 7.It is relevant to point out that the Hon'ble Apex Court has taken a consistent stand that the idea of affording opportunity of making representation is that such representation should be considered expeditiously and in the absence of considering it at the earliest point of time, the constitutional guarantee given to a citizen in respect of his personal liberty is violated. In the cases referred to below, the Hon'ble Supreme Court has taken such a consistent view. "(i)Rashid sk. v. State of West Bengal, reported in 1973(3) SCC 476; (ii)Ram Sukrya Mhatre v. R.D.Tyagi, reported in 1992 Supp.(3) SCC 65; (iii)Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, reported in 1989 SCC (crl.) 554; (iv)Tara Chand v.State of Rajasthan, reported in 1980 (2) SCC 321; (v)Raghavendra Singh vs. Superintendent, District Jail, reported in 1986(i) SCC 650; (vi)Rajammal v.State of Tamil Nadu, reported in 1999 (1) SCC 417; (vii)K.M.Abdulla Kunni v. Union of India, reported in 1991 (1) SCC 476". 8.A Division of this Court in Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-9 reported in 2007 (2) MWN (cr.) 149 has held that unexplained delay should be considered to be fatal to the detention order. Therefore, the mere contention raised by the learned Additional Public Prosecutor that the delay occurred is only administrative delay is not acceptable for the reason that such administrative delay would not bridge the breach of fundamental right guaranteed to a citizen in the Constitution of India. Therefore, on the ground of delay in considering the representation, the detention order is vitiated. 9.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 25.04.2011, passed by the third respondent in his proceedings No.P.D.O.No.04/2011, is quashed. The detenu Rajagopal is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. sms Sd/- Assistant Registrar[CO] /True copy/ To Sub Assistant Registrar 1.The Additional Secretary, Department of Consumer Affairs, Government of India, Room No.270, Krishi Bhavan, New Delhi-110 001. https://hcservices.ecourts.gov.in/hcservices/ 4 2.the Secretary to Government, State of Tamil Nadu, Food Co-operative & Consumer Protection, Department, Fort St., George, Chennai-09. 3.The District Collector and District Magistrate, Pudukkottai District, Pudukkottai. 4.The Superintendent, Central Prison, Trichy. [Induplicate for communication to detenu] 5.The Joint Secretary to Government, Public[Law & Order] Fort Saint, Chennai-9. 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 cc to Mr.A.Joihn xevior, Advovate SR.No.22236. H.C.P.(MD)No.357 of 2011 Dated:06.07.2011 4P/8C RPB 14.07.2011 https://hcservices.ecourts.gov.in/hcservices/