Tmt. Panchavarnam v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.1.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1748 of 2007Tmt. Panchavarnam.. PetitionerVs.1. The State of Tamil Nadu rep. by its Secretary to Government Co-operation, Food and Consumer Protection Department Fort St.George, Chennai.2. The District Collector and District Magistrate Madurai District Madurai3. The Union of India rep. by its Secretary to Government Food and Consumer Protection Department Ministry of Consumer Affairs Public Distribution, Government of India New Delhi... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Habeas Corpus, call for the entirerecords leading to the detention of the petitioner's husbandnamely Selvapandian S/O. Ponnaiah Servai detained under Act7/1980 vide detention order dated 29.11.2007 on the file of the2nd respondent herein made in the CMP.No.6/2007(CS) dated29.11.2007 quash the same and consequently direct the respondentsherein to produce the body and person of the said detenu beforethis Honourable Court and thereafter set him at liberty fromCentral Prison, Madurai. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Ms.R.Subadra DeviFor Respondents : Mr.N.R.Elango Addl. Public Prosecutor for R1&R2 Mr.P.Kumaresan, ACGSC for R3O R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detention asagainst the detenu Selvapandian, husband of the petitioner, as thesaid authority arrived at the subjective satisfaction that thedetenu is a Black Marketeer and he has to be detained underPrevention of Black Marketing and Maintenance of Supplies ofEssential Commodities Act, 1980.2.1. The order of detention dated 29.11.2007 came to be passedby the second respondent on the basis of the ground case said tohave taken place on 23.11.2007. On 23.11.2007, when the SpecialTahsildar, Civil Supplies, Madurai East along with his party tookup checking pertaining to discrepancies in supply of essentialcommodities, on reliable information, they searched the tin shed infront of Door No.15H, 4th Santhu, Narasimmapuram, New Ramnad Road,Madurai and found 220 bags, weighing 50 kgs. each boiled riceintended for public distribution system were kept there and thedetenu stated he is the owner of the said tin shed. The rice bagswere seized and the and detenu was produced before the Inspector ofPolice, Civil Supplies Criminal Investigation Department forillegal hoarding of the rice intended for Public DistributionSystem. A case was registered in Madurai Civil Supplies CriminalInvestigation Department Crime No.930 of 2007 under Section 6(4) ofTNSC (RDCS) Order, 1982 read with Section 7(1)(a)(ii) of theEssential Commodities Act, 1955. The detenu was arrested andremanded to judicial custody.2.2. The detaining authority, having satisfied that thedetenu is indulging in a manner prejudicial to the maintenance ofsupplies of commodities essential to the community in future,passed the impugned order.3. Challenging the above-said detention, the wife of thedetenu has come forward with the present Habeas Corpus Petitionseeking a writ of habeas corpus to call for the entire recordsleading to the detention of her husband – detenu, detained videdetention order dated 29.11.2007 on the file of the second https://hcservices.ecourts.gov.in/hcservices/ respondent made in C.M.P.No.06/2007, to quash the same and toconsequently direct the respondents to produce the detenu beforethis Court and to set him at liberty from Central Prison, Madurai.4. Heard the learned counsel for the petitioner andMr.N.R.Elango, learned Additional Public Prosecutor for respondents1 and 2.5. The only contention advanced by the learned counsel for thepetitioner is that there is considerable delay in considering therepresentation and the same has rendered the detention illegal.6.1. Before delving into the issue relating to the delay ascontended above, it would be apt to refer the law on the point.6.2. 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 .6.3. 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 65.6.4. 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 650.6.5. 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. https://hcservices.ecourts.gov.in/hcservices/ 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 417.7. In the instant case, the impugned order of detention cameto be passed on 29.11.2007. A representation was made on behalf ofthe detenu on 7.12.2007. The said representation was received bythe Government on 10.12.2007. Remarks were called for from theDetaining Authority on 12.12.2007. However, remarks were obtainedfrom the detaining authority by the Government only on 4.1.2008.There is no explanation on the part of the detaining authority asto what has transpired between 12.12.2007 to 4.1.2008, viz.,fourteen working days, excluding holidays. This delay washighlighted by the learned counsel for the petitioner. There is noconvincing reply on behalf of the State for the said delay. We findsome force as well as substance in this contention. 8. 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.” 9. 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 imperative https://hcservices.ecourts.gov.in/hcservices/ and it would render the continued detention impermissible andillegal, vide K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC476.The delay which stands unexplained is fatal to the detentionattracting Article 22 of the Constitution of India and therefore,the petition must succeed and the same is ordered as prayed for.The detention order dated 29.11.2007 is set aside. The detenu isdirected to be set at liberty forthwith unless his custody isrequired in connection with any other case.SasiSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government State of Tamil Nadu Co-operation, Food and Consumer Protection Department Fort St.George, Chennai.2. The District Collector and District Magistrate Madurai District, Madurai3. The Secretary to Government Union of India Food and Consumer Protection Department Ministry of Consumer Affairs Public Distribution, Government of India New Delhi.4. The Superintendent, Central Prison, Madurai.5. The Joint Secretary to the Government of Tamil Nadu,Public (Law and Order) Department,Fort St George, Chennai 9.6. The Public Prosecutor, High Court, Madras.H.C.P.No.1748 of 2007VSV(CO)SR/6.2.2008