1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2011 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P(MD)No.611 of 2011 Pal Selvi .. Petitioner vs. 1.The District Collector & District Magistrate, Madurai District, Madurai. 2.The State rep.by The Secretary to Government, Food, Co-operation & Consumer Protection Department, Secretariat, Chennai-9. 3.The Secretary, Government of India, Food & Consumer Protection Department, Ministry of Consumer Affairs, Food and Public Distribution System, New Delhi – 110 001. 4.The Inspector of Police, Civil Supplies CID, Madurai District. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to direct the respondents herein to produce the detenu, Ganeshan, son of Alagarsamy aged 48 years, who has been termed as "Black Marketer" who is now confined in Central Prison, Madurai, and call for records in C.M.P.No.05/2011(CS) dated 05.07.2011 passed by the first respondent herein and set aside the same and set the detenu at liberty. For petitioner :Mr.T.A.Omprakash For respondents :Mr.P.Jyothi Additional Public Prosecutor for R1,R2 and R4 :Mr.Durai Pandian Central Govt. Standing Counsel. for R3. ORDER (Order of the Court was made by V.PERIYA KARUPPIAH, J) This Habeas Corpus Petition has been filed by the wife of the detenu seeking for a direction, directing the respondents herein to https://hcservices.ecourts.gov.in/hcservices/ 2 produce the detenu Ganeshan son of Alagarsamy aged about 40 years, who has been termed as "Black Marketeer", now confined in Central Prison, Madurai and call for records in C.M.P.No.05/ 2011(CS) dated 05.07.2011 passed by the first respondent herein and quash the same and set the detenu at liberty. 2.We have heard Mr.T.A.Omprakash, learned Counsel appearing for the petitioner and Mr.P.Jothi, learned Additional Public Prosecutor appearing for the respondents 2 and 4 and Mr. Durai Pandian, learned Central Government Standing Counsel for the third respondent. 3.The learned Counsel for the petitioner would submit in his argument that the impugned order of detention passed under Act 7 of 1980, terming the detenu Ganeshan as "Black Marketeer" is not sustainable. He would further submit that the detaining authority has failed to see the real causes for detaining the detenu under the said Act. He would further submit that the detaining authority, without applying its mind, had come to the conclusion that there was a real possibility that the detenu may come out on bail by filing another bail application before the Court in respect of the adverse cases and the ground case when the findings of the said Court that the detenu was a habitual offender and therefore bail could not be granted for him. He would also submit that the detaining authority has erred in coming to the conclusion that the detenu may come out of bail by filing another application. He would also submit in his argument that the sponsoring authority has not given any special report for registering the cases and the State Government namely the second respondent has not sent the report to the third respondent in time from the date of passing the detention order. He would further submit in his argument that the translation of the detention order in Tamil is not the same as in the original detention order and it could be seen that the number 3305/1283 stated in page 6 of the booklet, has been given in Tamil version at page 7 as 3302/1283 and this would go to show that there was non- application of mind on the part of the detaining authority. He would vehemently stress in his argument that the representation given by the petitioner on 13.07.2011 was sent to the Government for remarks and the same was received only on 31.07.2011 which was a Sunday and it was only dealt with on 02.08.2011 and in that process there was a total delay of '12' days in submitting to the State Government and if '4' holidays occurred during the said period is deducted there would be a clear eight week days' delay in submitting the representation of the petitioner. He would also submit that thereafter also there was a delay of '5' days from the date of receipt of remarks till it was dealt with on 02.08.2011. He would also refer to the judgment of this Court in Sumaiya -V- The Secretary to Government, Prohibition & Excise Department, Government of Tamil Nadu, Fort.St.George, Chennai-9 and another reported in 2007(2)MWN(Cr.)145(DB) that even a three days delay in considering the representation is fatal to the detention order passed. He would further submit that unexplained delay caused in considering the representation would vitiate the detention order and several judgments of this Court have categorically laid down to that effect and therefore, the detention order passed by the detaining authority has no legs to stand. He would further submit that the detenu is now put in the jail under the guise of detention order which is illegal and hence, the petition filed by the wife of the detenu may be allowed and the detention order may be quashed and the detenu may be set at liberty. https://hcservices.ecourts.gov.in/hcservices/ 3 4.The learned Additional Public Prosector appearing for the respondents would submit in his argument that the detenu is admittedly a habitual offender and the sponsoring authority have furnished the particulars promptly and on that basis the detaining authority had applied its mind and had come to the conclusion that the detenu is a black marketeer. He would further submit that the detaining authority has come to the conclusion that there is a likelihood of the detenu filing further bail application before this Court since the detenu has every right to file bail applications at any stage even after the dismissal of the earlier bail applications. Considering the said provisions the detaining authority has come to the conclusion that the detenu may come out on bail at any stage and accordingly passed the detention order. He would also submit that the alleged delay caused in considering the representation will not be fatal since the delay caused in considering the representation of the petitioner is purely an administrative delay. Therefore, he would request the Court to reject the plea of the petitioner and to dismiss the petition. 5.We have anxiously considered the arguments advanced on either side. The indisputable facts are that there are three adverse cases filed against the detenu in Crime No.514/2010 on the file of Civil Supplies CID, Madurai, under Section 6(4) of TNSC (RDCS) Order 1982 r/w 7 (i)(a)(ii) of Essential Commodities Act, 1955; in Crime No.145/2011 on the file of Thirunagar Police Station, under Section 6(2)(3)(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of Essential Commodities Act, 1955 and in Crime No.244/2011 on the file of Checkanoorani Police Station, under Section 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of Essential Commodities Act, 1955. The ground case has been registered on 27.06.2011 by the Civil Supplies CID, Madurai, in Crime No.336 of 2011 under Section 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of Essential Commodities Act, 1955 and the detenu was arrested and produced before the learned Judicial Magistrate No.3, Madurai, and he was remanded to judicial custody up to 11.07.2011. The detention order was passed by the detaining authority on 05.07.2011 for the reasons mentioned in the said detention order on the basis of the said ground case as well as three adverse cases as aforesaid. 6.The main reason alleged by the detaining authority for passing the detention order was that the detenu filed an application in the ground case before the learned Judicial Magistrate No.3, Madurai, in Cr.M.P.No.4248/2011 and the same was dismissed by the Court on 30.06.2011 and yet another bail application filed by the detenu in Cr.M.P.No.514/2010(adverse case in Cr.M.P.No.4359/2011) was also dismissed by the said Court on the same day. The detaining authority has also come to the conclusion that there is a real possibility that the detenu may come out on bail by approaching higher Courts after lapse of time. 7.At this juncture, we are very much concerned about the application of mind of the detaining authority because the detaining authority must be satisfied with the imminent possibility of the detenu coming out on bail while passing the order of detention. Admittedly, the bail application filed by the detenu in ground case as well as adverse cases were summarily dismissed by the learned Judicial Magistrate No.3, Madurai, since he was a habitual offender. The detaining authority has not expressed any opinion regarding the reasons for dismissal by the said https://hcservices.ecourts.gov.in/hcservices/ 4 Court while passing such an order of refusal of bail. This would clearly show the non application of mind by the detaining authority. 8.As regards the delay put forth by the learned Counsel for the petitioner we can see that the proforma submitted by the learned Additional Public Prosecutor would show that the remarks on the representation was called for on 15.07.2011 and the same was submitted only on 31.07.2011. As argued by the learned Counsel for the petitioner, there is a delay of 12 days and and after deducting the intervening 4 holidays, it is found to be 8 days. Thereafter, it was considered and dealt with on 04.08.2011 by the Secretary concerned and on 05.08.2011 by the Secretary of law. There was a chronic delay caused in considering the representation. Also there was a delay of 5 days in placing it before the Under Secretary. 9.In the said circumstances, the judgment of this Court in Sumaiya -V- The Secretary to Government, Prohibition & Excise Department, Government of Tamil Nadu, Fort.St.George, Chennai-9 and another reported in 2007(2)MWN(Cr.)145(DB) is squarely applicable to the present case. The said delay of 8 + 5 days in considering the representation has not been explained by the respondents. The relevant passage in the said judgment following the principle laid down by the Honourable Apex Court in K.M. Abdulla Kunhi -v- Union of India reported in 1991(1) SCC 476 would be thus: "8.That part, it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissable and illegal vide K.M. Abdulla Kunhi -v- Union of India reported in 1991(1) SCC 476. 10.In the said case this, Court has considered three days delay in considering the representation has unexplained and the detention order was quashed. Similar view has been taken by this Court in yet another judgment in Venkatesan @ Maya Venkatesan reported in (2007) 1 MLJ (Crl) 1176 which is as follows: "10...Thus it is clear that the Government is bound to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. The test is not the duration or range of delay, but how it is explained by the Authority concerned. In this case, as pointed out above, there is absolutely no explanation for the delay of four days. It is a constitutional obligation to consider the representation forwarded by the detenu without any delay, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Hence, on this ground also the order of detention is liable to be quashed." 11.Applying the principles laid down in the aforesaid judgment and the principle laid down by the Honourable Apex Court in K.M. Abdulla Kunhi -v- Union of India reported in 1991(1) SCC 476, we are of the firm view that the delay in considering the representation made by the petitioner to an extent of 8 + 5 days is still unexplained and in our considered opinion it vitiates the impugned order of detention. Apart from that, the detaining authority did not apply its mind when it came to the conclusion to pass the detention order as to the minimum possibility https://hcservices.ecourts.gov.in/hcservices/ 5 of coming out on bail as discussed earlier. Therefore, we are inclined to allow the petition by quashing the impugned order of detention dated 05.07.2011 passed by the first respondent, against the detenu. 12.Accordingly, the order of detention passed against the detenu Ganeshan is quashed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar (C.S) To 1.The District Collector & District Magistrate, Madurai District, Madurai. 2.The Secretary to Government, Food, Co-operation & Consumer Protection Department, Secretariat, Chennai-9. 3.The Secretary, Government of India, Food & Consumer Protection Department, Ministry of Consumer Affairs, Food and Public Distribution System, New Delhi – 110 001. 4.The Inspector of Police, Civil Supplies CID, Madurai District. 5.The Superintendent, Central Prison, Madurai. 6.The Joint Secretary to Government, Public (Law and Order), Fort St. George, Chennai – 9. 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. + 1 cc to Mr.T.A.Om Prakash, Advocate, SR No.36078 H.C.P(MD)No.611 of 2011 19.10.2011 gsr RJ/3.11.11 5p/9c https://hcservices.ecourts.gov.in/hcservices/