S.Balamani v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.12.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1338 of 2007S.Balamani.. PetitionerVs1. State of Tamil Nadu, Rep. by its Secretary to Government, Co-operation, Food and Consumer Protection Department, Fort St. George, Chennai.2. The Commissioner of Police, Coimbatore City, Coimbatore.3. Union of India, Rep. by its Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs and Public Distribution, Govt. of India, New Delhi... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus appropriate writ or order orDirection in the nature of Writ calling for records pertaining tothe detenu Mr.P.Samuel son of Mr.Ponnaiyah Nadar is detained underTamil Nadu Act 7 of 1980 as BLACK MARKETER at Central Prison,Coimbatore, by the Second Respondent vide his order inC.No.07/PBMMSEC.Act/IS/2007 dated 22.08.2007 on the file of theSecond Respondent herein and to quash the same and to direct therespondents herein to produce the body of the detenu Mr.P.Samuel sonof Mr.Ponnaiyah Nadar before this court and set him at liberty.For Petitioner:Mr.M.Sathish KumarFor Respondents:Mr.P.Kumaresan,Addl. Public Prosecutor.---- https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner, wife of the detenu by name P.Samuel, who wasincarcerated at Central Prison, Coimbatore, by an order dated22.8.2007 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 writ ofHabeas Corpus to call for the records in connection with the order ofdetention dated passed in C.No.07/PBMMSEC.Act/IS/2007, to set asidethe same and to direct the respondents to produce the detenu beforethis Court and set him at liberty.2. On 11.8.2007, the police party attached to Civil Supplies CIDUnit, Coimbatore, inspected the premises belonged to one Samuel, thedetenu herein, on the foot that the rice meant for PublicDistribution System is being used illegally, found that the rationrice has been grinded as flour and sold in the form of 'Idly','Dosa', etc. On the basis of the voluntary confession given by thedetenu that one Sundar used to give ration rice to him and using thesame, he grinded it as flour and sold in the aforesaid forms, he wasarrested and the wet grinders and samples of four were seized. Acase in Coimbatore Civil Supplies CID Crime No.396/2007 wasregistered under Section 6(4) of T.N.S.C. (RDCS) Order 1982 r/2 7(1)a (ii) of E.C. Act. and the detenu was produced before the JudicialMagistrate No.IV, incharge of Judicial Magistrate NO.II, Coimbatore,who remanded him to judicial custody.3. The second respondent, taking note of the above ground caseand having satisfied that there is a compelling necessity to detainthe detenu in order to prevent him from indulging in the activitieswhich are prejudicial to the maintenance of supply of essentialcommodities to the community, ordered his detention dubbing him as aBlack Marketeer. 4. Since 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 the Government,we do not propose to go into other aspects, as the said ground has tosucceed.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 that theobligation of the government is to offer the detenu an opportunity ofmaking a representation against the order, before it is confirmed https://hcservices.ecourts.gov.in/hcservices/ according to the procedure laid down under the relevant provisions oflaw, vide K.M. Abdulla Kunhi v. Union of India, (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 mandate ofArticle 22(5) of the Constitution of India, vide Ram Sukrya Mhatre v.R.D. Tyagi, 1992 Supp (3) SCC 65.5.4. 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 321 andRaghavendra 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, thewords “as soon as may be” in clause (5) of Article 22 convey themessage that the representation should be considered and disposed ofat the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in thedisposal of the representation. The court can certainly considerwhether the delay was occasioned due to permissible reasons orunavoidable causes. If delay was caused on account of anyindifference or lapse in considering the representation, such delaywill adversely affect further detention of the prisoner. In otherwords, it is for the authority concerned to explain the delay, ifany, in disposing of the representation. It is not enough to say thatthe delay was very short. Even longer delay can as well be explained.So the test is not the duration or range of delay, but how it isexplained by the authority concerned. Even the reason that theMinister was on tour and hence there was a delay of five days indisposing of the representation was rejected by the Apex Courtholding that when the liberty of a citizen guaranteed under Article21 of the Constitution of India is involved, the absence of theMinister at head quarters is not sufficient to justify the delay,since the file could be reached the Minister with utmost promptitudein cases involving the vitally important fundamental right of acitizen, vide Rajammal v. State of T.N., (1999) 1 SCC 417.6. Coming to the case on hand, admittedly, objecting to the orderof detention dated 22.8.2007, a representation was made on behalf ofthe detenu on 9.10.2007, which was received by the Government on10.10.2007. Remarks were called for from the detaining authority on11.10.2007, who, in turn, called for parawar remarks from thesponsoring authority on 16.10.2007. The detaining authority, thoughreceived the same on 19.10.2007, sent the same to the Government onlyon 30.10.2007, i.e. after a delay of eleven days. Even if we exclude https://hcservices.ecourts.gov.in/hcservices/ the intervening holidays, viz. 20.10.2007, 21.10.2007, 27.10.2007 and28.10.2007, (being Saturdays and Sundays), still there is delay ofseven days in sending the remarks to the Government, which is notproperly explained. Thereafter, on receipt of the remarks on31.10.2007, the file was circulated on 2.11.2007, on which date, theUnder Secretary and Deputy Secretary considered the same. TheSecretary (CF & CP) and the Secretary (Law) considered the file on5.11.2007 and 6.11.2007 respectively and the Minister for Food dealtwith the file on 6.11.2007 and rejected the same. The rejectionletter was prepared on 7.11.2007, sent to the detenu on 9.11.2007 andserved on him on 10.11.2007.7. 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 repeatedly overthe past three decades, the Executive, namely, the StateGovernment and its officers continue to behave in their old,lethargic fashion and like all other files rusting in theSecretariat for various reasons including red-tapism, therepresentation made by a person deprived of his liberty,continue to be dealt with in the same fashion. The Governmentand its officers will not give up their habit of maintaining aconsistent attitude of lethargy. So also, this Court will nothesitate in quashing the order of detention to restore the‘liberty and freedom’ to the person whose detention is allowedto become bad by the Government itself on account of hisrepresentation not being disposed of at the earliest.” 8. That apart, it is a settled law that there should not besupine indifference, slackness or callous attitude in considering therepresentation. Any unexplained delay in the disposal ofrepresentation would be a breach of the constitutional imperative andit would render the continued detention impermissible and illegal,vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476.9. In the instant case, there is delay of seven days on the partof the detaining authority in sending the remarks to the Government,which is admittedly unexplained and inexcusable and hence, the same,in our considered opinion, vitiates the impugned order of detention.We are, therefore, inclined to allow this petition. https://hcservices.ecourts.gov.in/hcservices/ In the result, the order of detention is set aside. The detenuis directed to be set at liberty forthwith unless his presence isrequired in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sraTo:1. The Secretary to the Government., Food, Co-operation and Consumer Protection Department, Chennai-9.2. The Commissioner of Police, Coimbatore City, Coimbatore.3. The Secretary to the Government, Food and Consumer Protection Department, Ministry of Consumer Affairs and Public Distribution, Govt. of India, New Delhi.4. The Superintendent Central Prison, Coimbatore.5. The Public Prosecutor, High Court, Madras.6. The Joint Secretary to the Government,Public [Law and Order] Department,Fort St. George, Chennai 9.H.C.P.No.1338 of 2007sud[co]gp/28.12.