Selvam v. The Secretary to the Government., Food, Co-operation and Consumer Protection Department, Chennai-9.2

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.11.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1328 of 2007Selvam.. PetitionerVs1. The Secretary to the Government., Food, Co-operation and Consumer Protection Department, Chennai-9.2. The District Magistrate and District Collector, Theni District.3. The Secretary to the Government, Food and Consumer Protection Department, Govt. of India, New Delhi... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus as stated therein.For Petitioner:Mr.V.ParthibanFor Respondents:Mr.N.R.Elango APP for RR1 & 2:Mr.P.Kumaresan,ACGSC /R-3ORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, friend of the detenu by name Subramanian, whowas incarcerated at Central Prison, Madurai, by an order dated12.8.2007 of the second respondent under the provisions of BlackMarketing and Maintenance of Supplies of Essential Commodities Act,1980 (Act 7/1980) branding him as a Black Marketeer, seeks a writof Habeas Corpus to call for the records in connection with the https://hcservices.ecourts.gov.in/hcservices/ order of detention dated 12.8.2007 passed in No.2/2007/CS, to setaside the same and to direct the respondents to produce the detenubefore this Court and set him at liberty.2. On 4.8.2007, the police party attached to Civil SuppliesCID Unit, Uthamapalayam, conducted vehicle check near Old PoliceCheck Post, Cumbum Mettu Road and intercepted a lorry, whichcontained 208 bags of rice meant for Public Distribution System,and when the police enquired the detenu and the lorry driver, theyconfessed that they tried to smuggle the rice to sell it at higherprice. The detenu and the lorry driver were arrested and theirconfession statements, admitting the offence, were recorded and thecontraband were seized. On the basis of the confession statements,a case in Crime No.439/2007 under Clause 64 of TNSC (RDCS) Order,1982 and r/w 7(1)(a)(ii) of the Essential Commodities Act, 1955 wasregistered on the file of Uthamapalayam Civil Supplies CID Unit.The detenu was produced before the Judicial Magistrate,Uthamapalayam, for judicial custody.3. The second respondent, taking note of the above groundcase, having satisfied that there is a compelling necessity todetain the detenu in order to prevent him from indulging in theactivities which are prejudicial to the maintenance of Distributionof Essential Commodities to the public, ordered his detentiondubbing him as a Black Marketeer. 4. The learned counsel for the petitioner challenges theimpugned order of detention only on the ground of delay on the partof the detaining authority in sending the remarks to theGovernment.5.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.5.2. Article 22(5) of the Constitution of India suggests thatthe obligation of the government is to offer the detenu anopportunity of making a representation against the order, before itis confirmed according to the procedure laid down under therelevant provisions of law, vide K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 .5.3. The right to representation under Article 22(5) of theConstitution of India includes right to expeditious disposal by theState Government. Expedition is the rule and delay defeats mandateof Article 22(5) of the Constitution of India, vide Ram SukryaMhatre v. R.D. Tyagi, 1992 Supp (3) SCC 65. https://hcservices.ecourts.gov.in/hcservices/

5.4. Any inordinate and unexplained delay on the part of theGovernment in considering the representation renders the detentionillegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321and Raghavendra Singh v. Supdt., Distt. Jail, (1986) 1 SCC 650.5.5. It is a constitutional obligation of the Government toconsider the representation forwarded by the detenu without anydelay. Though no period is prescribed by Article 22 of theConstitution for the decision to be taken on the representation,the words “as soon as may be” in clause (5) of Article 22 conveythe message that the representation should be considered anddisposed of at the earliest. But that does not mean that theauthority is pre-empted from explaining any delay which would haveoccasioned in the disposal of the representation. The court cancertainly consider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delay was caused onaccount of any indifference or lapse in considering therepresentation, such delay will adversely affect further detentionof the prisoner. In other words, it is for the authority concernedto explain the delay, if any, in disposing of the representation.It is not enough to say that the delay was very short. Even longerdelay can as well be explained. So the test is not the duration orrange of delay, but how it is explained by the authority concerned.Even the reason that the Minister was on tour and hence there was adelay of five days in disposing of the representation was rejectedby the Apex Court holding that when the liberty of a citizenguaranteed under Article 21 of the Constitution of India isinvolved, the absence of the Minister at head quarters is notsufficient to justify the delay, since the file could be reachedthe Minister with utmost promptitude in cases involving the vitallyimportant fundamental right of a citizen, vide Rajammal v. State ofT.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objecting to theorder of detention dated 12.8.2007, a representation was made onbehalf of the detenu on 29.8.2007, which was received by theGovernment on 5.9.2007. Remarks were called for from the detainingauthority on 6.9.2007. The detaining authority, though receivedthe same on 9.9.2007, called for the parawar remarks from thesponsoring authority only on 19.9.2007, i.e. after a delay of tendays. Even taking note of the intervening holidays, viz.15.9.2007 and 16.9.2007 (being Saturday and Sunday), there isinordinate delay of eight days on the part of the detainingauthority in calling for the parawar remarks from the sponsoringauthority, which remained unexplained and is inexcusable. Thesponsoring authority sent the parawar remarks on the same day, i.e.on 19.9.2007 and it was sent to the Government on 20.9.2007. Onreceipt of the remarks on 22.9.2007, the file was circulated on24.9.2007, on which date, the Under Secretary, Deputy Secretary and https://hcservices.ecourts.gov.in/hcservices/ the Secretary (CF & CP) considered the same. The Secretary (Law)and the Minister concerned dealt with the file on 25.9.2007 andrejected the representation. The rejection letter was prepared andsent to the detenu on 26.9.2007 and served on him on 29.9.2007.7. At this juncture, a reference to the decision of the ApexCourt in Kundanbhai Dulabhai Sheikh v District Magistrate,Ahmedabad, (1996) 3 SCC 194 is apposite:"In spite of law laid down above by this Court repeatedlyover the past three decades, the Executive, namely, theState Government and its officers continue to behave intheir old, lethargic fashion and like all other filesrusting in the Secretariat for various reasons includingred-tapism, the representation made by a person deprived ofhis liberty, continue to be dealt with in the same fashion.The Government and its officers will not give up their habitof maintaining a consistent attitude of lethargy. So also,this Court will not hesitate in quashing the order ofdetention to restore the ‘liberty and freedom’ to the personwhose detention is allowed to become bad by the Governmentitself on account of his representation not being disposedof at the earliest.” 8. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in consideringthe representation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperativeand it would render the continued detention impermissible andillegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC476.9. In the instant case, there is delay of eight days on thepart of the detaining authority in calling for the parawar remarksfrom the sponsoring authority, as referred to above, and the same,in our considered opinion, vitiates the impugned order ofdetention. We are, therefore, inclined to allow this petition. In the result, the order of detention is set aside. Thedetenu is directed to be set at liberty forthwith unless hispresence is required in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sra https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to the Government., Food, Co-operation and Consumer Protection Department, Chennai-9.2. The District Magistrate and District Collector, Theni District.3. The Secretary to the Government, Food and Consumer Protection Department, Govt. of India, New Delhi.4. The Superintendent Central Prison, Madurai.5. The Joint Secretary to GovernmentPublic (Law and order) Department,Fort St. George, Chennai-9.6. The Public Prosecutor, High Court, Madras.H.C.P.No.1328 of 2007MA (CO)kk 5/12