Madras High Court
C. Duraichi vs The Additional Secretary To Government ... on 1 October, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan
H.C.P.(MD) No.798 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
and
THE HONOURABLE MS.JUSTICE R.POORNIMA
H.C.P.(MD) No.798 of 2024
C. Duraichi ... Petitioner
-vs-
1. The Additional Secretary to Government of India,
Department of Consumer affairs
Food and Consumer Affairs Department
Room No.270, Krishibhavan
New Delhi- 110 001.
2. The Secretary to Government
Co-operation, Food and Consumer Protection Department,
Namakkal Kavignar Maaligai,
Secretariat, Chennai -600 009
3. The District Collector and District Magistrate,
Tirunelveli District
Tirunelveli.
4. The Superintendent of Prison
Central Prison
Palayamkottai, Tirunelveli District ... Respondents
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H.C.P.(MD) No.798 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus calling for the entire records connected with the detention
order passed in M.H.S. Confdl. No.93 of 2024 dated 30.05.2024 on the file of the
third respondent herein and quash the same and direct the respondents to
produce the detenue or body of the detenue namely the petitioner's husband ie.,
Chellappa, aged about 54 years, S/o.Gopal now detained at the Central Prison,
Palayamkottai before this Court and set him at liberty forthwith.
For Petitioner : Mr.N. Pragalathan
For R-1 : Mr.Rajesh Saravanan
For RRs2 to R4 : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
The petitioner is the wife of the detenu viz., Chellappa, son of
Gopal, aged about 54 years. The detenu has been detained by the third respondent
by his order in M.H.S. Confdl. No.93 of 2024 dated 30.05.2024 holding him to
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be a "Black marketer", as contemplated under the provisions of Prevention of
Black marketing and Maintenance of Supplies of Essential Commodities Act,
1980 (Act No.7 of 1980). The said order is under challenge in this habeas corpus
petition.
2. We have heard the learned counsel appearing for the petitioner and
the learned Additional Public Prosecutor appearing for the respondents. We have
also perused the records produced by the Detaining Authority.
3. Though several grounds have been raised in the habeas corpus
petition, learned counsel for the petitioner focused mainly on the ground that
there is an unexplained delay in considering the representation of the petitioner,
dated 01.07.2024. According to the learned counsel for the petitioner, though the
representation is dated 01.07.2024, the same was received by the Government on
04.07.2024 and the rejection letter was sent to the detenu on 21.08.2024 There is
a delay of 32 days in Column Nos.6 to 17 of the Proforma in considering the
petitioner's representation. The said delay of 32 days in considering the
representation remains unexplained and the same vitiates the impugned detention
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order. In support of his contention, learned counsel for the petitioner relied on the
Judgment of the Honourable Supreme Court in Rajammal vs. State of Tamil
Nadu, reported in (1999) 1 SCC 417.
4. Learned Additional Public Prosecutor, on instructions, submitted
that after satisfying with the materials placed by the Sponsoring Authority, the
Detaining Authority has passed the impugned detention order and there is no
illegality or infirmity in the detention order. It is also stated that even if there is
any delay in disposal of the representation, it has not caused any prejudice to the
rights of the detenu and hence, prayed for dismissal of the habeas corpus petition.
5. As per the submission of the learned counsel for the petitioner and
on perusal of the records, we find that the representation of the petitioner is dated
01.07.2024, which was received by the Government on 04.07.2024 and the
rejection letter was sent to the detenu on 21.08.2024. As per the proforma
submitted by the learned Additional Public Prosecutor, there is a delay of 32 days
in Column Nos.6 to 17 in considering the representation of the petitioner and we
find that the said delay remains unexplained.
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6. It is trite law that the representation should be very expeditiously
considered and disposed of with a sense of urgency and without avoidable delay.
Any unexplained delay in the disposal of the representation would be a breach of
the constitutional imperative and it would render the continued detention
impermissible and illegal. From the records produced, we find that no acceptable
explanation has been offered for the delay of 32 days. Therefore, we have to hold
that the delay has vitiated further detention of the detenu.
7. In the above cited decision of the Honourable Supreme Court in
Rajammal's case, it has been held as follows:
"It is a constitutional obligation of the Government
to consider the representation forwarded by the detenu
without any delay. Though no period is prescribed by
Article 22 of the Constitution for the decision to be taken on
the representation, the words "as soon as may be " in clause
(5) of Article 22 convey the message that the representation
should be considered and disposed of at the earliest."
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8. As per the dictum laid down by the Supreme Court in above cited
Rajammal's case, number of days of delay is immaterial and what is to be
considered is whether the delay caused has been properly explained by the
authorities concerned. But, in the instant case, the inordinate delay of 32 days has
not been properly explained.
9. Further, in a recent decision in Ummu Sabeena vs. State of
Kerala-2011 STPL (Web) 999 SC, the Honourable Supreme Court has held that
the history of personal liberty, as is well known, is a history of insistence on
procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the
Constitution of India clearly shows the concern of the makers of the Constitution
that the representation made on behalf of the detenu, should be considered and
disposed of with a sense of urgency and without any avoidable delay.
10. In the light of the above discussion, we have no hesitation in
quashing the order of detention on the ground of delay on the part of the
Government in disposing of the representation of the petitioner.
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11. In the result, the Habeas Corpus Petition is allowed and the order
of detention in M.H.S. Confdl. No.93 of 2024 dated 30.05.2024 passed by the
third respondent is set aside. The detenu, viz., Chellappa, son of Gopal, aged
about 54 years is directed to be released forthwith unless his detention is required
in connection with any other case.
12. In this case the detention order had been passed categorizing the
detenue as black marketer. There are two adverse cases against him. In the ground
case it had been alleged that he had been involved in the smuggling of 9440kgs
of PDS rice. The respondent had taken care to ensure that if representation is
given which is addressed without delay. We find that it had addressed with a
delay of 32 days. We hope that the delay is not deliberate,but it requires
examining the stage at which the delay had occurred . In this connection the
second respondent/ The Secretary to Government, Co-operation, Food and
Consumer Protection Department, Namakkal Kavignar Maaligai, Secretariat,
Chennai -600 009 is directed to examine and fix responsibility on the specific
official owing to whom the enormous delay of 32 days had occurred and initiate
necessary departmental proceedings. Since we are confident that the Secretary to
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Government would act on our orders, we are not listing the matter again but if he
does not it only reflect scanned respect for rule of law.
[C.V.K., J.] [R.P., J.]
01.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
aav
To:
1. The Additional Secretary to Government of India,
Department of Consumer affairs
Food and Consumer Affairs Department
Room No.270, Krishibhavan
New Delhi- 110 001.
2. The Secretary to Government
Co-operation, Food and Consumer Protection Department,
Namakkal Kavignar Maaligai,
Secretariat, Chennai -600 009
3. The District Collector and District Magistrate,
Tirunelveli District
Tirunelveli.
4. The Superintendent of Prison
Central Prison
Palayamkottai, Tirunelveli District
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5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to
The Chief Secretary to Government
State of Tamil Nadu
Home, Prohibition and Excise, Fort St.George, Chennai- 600 009
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C.V. KARTHIKEYAN, J.
AND
R.POORNIMA, J.
aav
01.10.2024
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