THE HONOURABLE MR v. The Additional Secretary

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 06.07.2011CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIandTHE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition (MD) No.357 of 2011R.Chithra... Petitionervs.1.The Additional Secretary, Department of Consumer Affairs, Government of India, Room No.270, Krishi Bhavan, New Delhi-110 001.2.State of Tamil Nadu, rep.by the Secretary to Government, Food Co-operative & Consumer Protection, Department, Fort St., George, Chennai-09.3.The District Collector and District Magistrate, Pudukkottai District, Pudukkottai.... RespondentsPrayer: This Habeas Corpus Petition is filed under Article 226 of theConstitution of India praying for issuance of a writ of habeas corpus,calling for the records in detention order passed in P.D.O.No.04/2011,dated 25.04.2011 on the file of the 3rd respondent herein and settingaside the same as illegal and directing the respondents to produce thebody of the petitioner's husband namely Rajagopal, son of Vadivel, agedabout 36/2011, before this Court and set him at liberty from CentralPrison, Trichirappalli.For Petitioner : Mr.K.KumaravelFor Respondents: Mr.P.Jothi, Addl.Public Prosecutor. For R1: Mr.A.John Xavier[CGSC] O R D E R(Order of the Court was made by P.JYOTHIMANI,J.)The petitioner, who is the wife of detenu, has filed this petitionchallenging the order of detention, dated 25.04.2011, clamped on herhusband by the third respondent under the Tamil Nadu Prevention of BlackMarketing and Maintenance of Supplies of Essential Commodities Act, 1980,branding him as a "Black Marketeer" and directing him to be detained atthe Central Prison, Tiruchirappalli. https://hcservices.ecourts.gov.in/hcservices/

22.Mr.R.Alagumani, learned counsel appearing for the petitionerwould challenge the detention order mainly on the ground of delay inconsidering the representation made by the detenu. According to him,though the Government has called for remarks from the detaining authorityon the representation of the detenu as early as on 05.05.2011, suchremarks were received by the Government only on 16.05.2011, after a delayof eleven days, which vitiates the detention order. In support of hiscontention, he relied on the judgment of a Division Bench of this Courtin Sumaiya vs. The Secretary to Government, Prohibition and ExciseDepartment, Government of Tamil Nadu, Fort St.George, Chennai-9 andanother reported in (2007) (2) MWN (Cr.) 145 (DB).3.On the other hand, it is the contention of Mr.P.Jothi, learnedAdditional Public Prosecutor, that there has been some delay infurnishing the remarks by the detaining authority to the Government.According to him, at the level of Under Secretary, Deputy Secretary aswell as the Minister concerned, there has been no delay. 4.We have considered the rival contentions and given our anxiousthought to the issue involved in the above case. 5.At the outset, it is to be stated that on a reference to thepro-forma submitted by the learned Additional Public Prosecutor, it isseen that the petitioner was detained on 25.04.2011 under the impugnedorder of detention passed by the second respondent. Thereafter, thepetitioner has made a representation and the same has been received bythe Government on 05.05.2011. Remarks were called for from the detainingauthority on the same day i.e., on 05.05.2011 and such remarks werereceived by the Government only on 16.05.2011 and there has been a delayof eleven days in furnishing the remarks. There was no interveningholidays and there is no explanation for such delay. In addition to that,learned counsel for the petitioner has also referred to the impugnedorder to the effect that the third respondent has not chosen to stateanything about the real possibility or very likely or most likely natureof the petitioner in branding as Black Marketeer. 6.On a reference to the impugned order, we find that the thirdrespondent has not chosen to use the word "compelling necessity" for thepurpose of invoking Section 3(1) of the Tamil Nadu Prevention of BlackMarketing and Maintenance of Supplies of Essential Commodities Act, 1980.In K.Thirupathi Vs.District Magistrate and District Collector,Tiruchirapalli District at Tiruchirapalli and another reported in 2005(4)CTC 497, the Full Bench of this Court while holding that even though theactual usage of the word 'imminent' is not necessary and the otherconvincing expressions like "real possibility', 'very likely', or 'mostlikely' can be used by the detaining authority. In paragraph 29 of theFull Bench judgment, it is held as follows:"29.In view of the above, we hold that strictinsistence of the usage of the word "imminent" is not necessaryand the other convincing expressions like "real possibility","very likely" or "most likely" can be used by the detainingauthority to reflect its satisfaction with regard to immediaterelease of the detenu on bail. We answer the Referenceaccordingly". https://hcservices.ecourts.gov.in/hcservices/

37.It is relevant to point out that the Hon'ble Apex Court hastaken a consistent stand that the idea of affording opportunity of makingrepresentation is that such representation should be consideredexpeditiously and in the absence of considering it at the earliest pointof time, the constitutional guarantee given to a citizen in respect ofhis personal liberty is violated. In the cases referred to below, theHon'ble Supreme Court has taken such a consistent view."(i)Rashid sk. v. State of West Bengal, reported in1973(3) SCC 476;(ii)Ram Sukrya Mhatre v. R.D.Tyagi, reported in 1992Supp.(3) SCC 65;(iii)Aslam Ahmed Zahire Ahmed Shaik v. Union ofIndia and others, reported in 1989 SCC (crl.) 554;(iv)Tara Chand v.State of Rajasthan, reported in 1980(2) SCC 321;(v)Raghavendra Singh vs. Superintendent, DistrictJail, reported in 1986(i) SCC 650;(vi)Rajammal v.State of Tamil Nadu, reported in 1999(1) SCC 417;(vii)K.M.Abdulla Kunni v. Union of India, reportedin 1991 (1) SCC 476".8.A Division of this Court in Sumaiya vs. The Secretary toGovernment, Prohibition and Excise Department, Government of Tamil Nadu,Fort St.George, Chennai-9 reported in 2007 (2) MWN (cr.) 149 has heldthat unexplained delay should be considered to be fatal to the detentionorder. Therefore, the mere contention raised by the learned AdditionalPublic Prosecutor that the delay occurred is only administrative delay isnot acceptable for the reason that such administrative delay would notbridge the breach of fundamental right guaranteed to a citizen in theConstitution of India. Therefore, on the ground of delay in consideringthe representation, the detention order is vitiated.9.Accordingly, the habeas corpus petition is allowed and theimpugned order of detention, dated 25.04.2011, passed by the thirdrespondent in his proceedings No.P.D.O.No.04/2011, is quashed. Thedetenu Rajagopal is directed to be set at liberty forthwith, unless hisdetention is required in connection with any other case. smsSd/-Assistant Registrar[CO]/True copy/ToSub Assistant Registrar1.The Additional Secretary, Department of Consumer Affairs, Government of India, Room No.270, Krishi Bhavan, New Delhi-110 001. https://hcservices.ecourts.gov.in/hcservices/

42.the Secretary to Government, State of Tamil Nadu, Food Co-operative & Consumer Protection, Department, Fort St., George, Chennai-09.3.The District Collector and District Magistrate, Pudukkottai District, Pudukkottai.4.The Superintendent, Central Prison, Trichy. [Induplicate for communication to detenu]5.The Joint Secretary to Government, Public[Law & Order] Fort Saint, Chennai-9.6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 cc to Mr.A.Joihn xevior, Advovate SR.No.22236.H.C.P.(MD)No.357 of 2011Dated:06.07.20114P/8CRPB 14.07.2011