1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.07.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.290/2011 Shanthi Petitioner Vs 1.The Additional Secretary, Department of Consumer Affairs, Government of India, Room No.270 Krishi Bhavan, New Delhi 110001 2.The Secretary to Government, Cooperative, Food, And Consumer Protection Department, Secretariat, Chennai-9 3.The District Collector and District Magistrate Thanjavur District Respondents Prayer:- This Habeas Corpus Petition is filed to issue a Writ of Habeas Corpus to call for records from the 3rd respondent in PD.No.05/2001 dated 23.3.2011, to set aside the same and to set at liberty the detenu Rajkumar @ Raj, aged about 36 years, now detained in the Central Prison, Trichy. For Petitioner : Mr.K.Kumaravel For Respondents : Mr.S.Arunkumar, CGSC-R1 Mr.P.Jyothi, APP -RR2&3 ORDER (Order of the Court was made by ARUNA JAGADEESAN J.) The petitioner is the wife of the detenu. The petitioner has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the impugned detention order dated 23.3.2011, slapped on the detenu branding him as a “Black Marketeer” as contemplated under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7/1980). 2. Mr.K.Kumaravel, the learned counsel for the petitioner mainly contended that though the detaining authority has received the representation dated 06.04.2011 of the petitioner on 8.4.2011 and called for remarks on 08.04.2011, the said representation of the petitioner has not been considered and disposed of, till date and as such, the impugned order of detention is vitiated and the same is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 2 3. On the above said contentions of the learned counsel for the petitioner, this court heard the learned Central Government Standing Counsel for the 1st respondent and the learned Additional Public Prosecutor for the respondents 2 and 3 and also perused the materials placed on record. 4. A perusal of the proforma produced by the learned Additional Public Prosecutor would reveal that the impugned detention order was passed on 23.03.2011, the petitioner has sent his representation on 06.04.2011 and the same was received by the authorities concerned on 08.04.2011. It also appears that though remarks have been called for on 08.04.2011 by the detaining authority, the representation of the petitioner has not been dealt with and disposed of by the authorities concerned, till date. Moreover, it is nowhere indicated in the counter affidavits filed by the respondents 1 and 3 as to why the said representation of the petitioner has not been dealt with and disposed of by the authorities concerned, despite the remarks have been called for on 08.04.2011. 5. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The Reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority, but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril, immediate action should be taken by the relevant authority. 6. Though no definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible and the requirement is that there should not be any indifference and callous attitude in considering the representation. In view of the settled law, the action of the authorities in keeping the representation without being considered and disposed of expeditiously is illegal. The Honourable Supreme Court in Jayanarayan Sukul Vs. State of WB (1970-1-SCC-219) has set out the following four principles to be followed in regard to representation of detenu:- “1. The appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. 2. The consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. https://hcservices.ecourts.gov.in/hcservices/ 3 3. There should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, but it has to be remembered that the Government has to be vigilant in the governance of the citizens. 4. The appropriate Government has to exercise its opinion and judgement on the representation before sending the case along with the representation of the petitioner to the Advisory Board. If the appropriate Government will release the detenu, the Government will not send the matter to the Advisory Board. If, however, the Government will not release the detenu, the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu, the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu, the Government may still exercise the power to release the detenu. 7. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against detention as imperated in Article 22(5) of the Constitution. It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition. The representation is to be considered in its right perspective keeping in view the fact that the detention of the detenu is based on the subjective satisfaction of the authority concerned and infringement of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The intermediary authorities who are communicating authorities have also to move with an equal amount of promptitude. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. Any slackness in this behalf not properly explained would be denial of the protection conferred by the Statute and would result in invalidation of the order. 8. In the present case, the representation was sent by the detenu in Jail to the detaining authority on 06.04.2011 and the same was received on 08.04.2011. Though the remarks have been called for on 08.04.2011, but the representation of the detenu has not been considered by the authorities concerned till date. Thus, the representation was not dealt with by the authorities concerned as early as possible or as expeditiously as possible and therefore, there is infringement of his right, which results in the invalidation of the impugned detention order. It is also not justified to ignore the representation of the detenu as a statutory https://hcservices.ecourts.gov.in/hcservices/ 4 duty cast upon the authorities and it is necessary that they should apply their mind either to revoke the order of detention or reject the representation. 9. It is no doubt true that black marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm hand, but when it comes to fundamental rights under the Constitution, the Honourable Supreme Court, irrespective of enormity and gravity of allegations made against the detenu, had intervened, when the fundamental rights have been infringed on the ground that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reasons for invading the personal liberty of a citizen, except in accordance with the procedure established by law particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial. Therefore, we are satisfied that non-consideration of the representation of the detenu by the authorities concerned would affect the impugned detention order and in that situation, the continued detention would become bad and the guarantee of earliest disposal of the representation set out in Art.22(5) of the Constitution of India has been infringed. Therefore, in view of the above said observations, the impugned detention order is vitiated and we are constrained to quash the impugned order of detention. 10. In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the 3rd respondent in PD.No.05/2001 dated 23.3.2011 is hereby quashed and the detenu Rajkumar @ Raj is set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To: 1. THE ADDITIONAL SECRETARY DEPT., OF CONSUMER AFFAIRS, GOVT.,OF INDIA, ROOM NO.270, KRISHI BHAVAN, NEW DELHI-110 001. 2. THE SECRETARY TO GOVERNMENT CO-OPERATION, FOOD AND CONSUMER PROTECTION DEPARTMENT, FORT. ST.GEORGE, CHENNAI-600 009. 3. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THANJAVUR DISTRICT, THANJAVUR. 4. THE SECRETARY TO GOVERNMENT PROHIBITION AND EXCISE DEPARTMENT, FORT ST.GEORGE, CHENNAI - 9 https://hcservices.ecourts.gov.in/hcservices/ 5 5. THE JOINT SECRETARY TO GOVERNMENT PUBLIC (LAW & ORDER), FORT ST.GEORGE, CHENNAI-9 6. THE SUPERINTENDENT CENTRAL PRISON, TIRUCHIRRAPPALLI 7.THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI +1cc to Mr.S.Arun Kumar, Advocate, Sr.No.24361 srcm ssk/04.08.2011 /9c -5p/- HCP(MD)NO.290/2011 https://hcservices.ecourts.gov.in/hcservices/