Jesina v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.06.2022 Coram The Honourable Mr. Justice PARESH UPADHYAY and The Honourable Mr. Justice A.D.JAGADISH CHANDIRA H.C.P.No.92 of 2022 Jesina .. Petitioner Vs

1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009.

2. The Commissioner of Police/ Detaining Authority, City Police Officer, Huzur Road, Coimbatore City, Coimbatore - 18.

3. The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krishi Bhawan, New Delhi - 110 001.

4. The Superintendent of Prison, Central Prison - Coimbatore, Coimbatore District.

5. State represented by The Inspector of Police, CSCID-Pollachi, Coimbatore District.

(Crime No.325 /2021) .. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the entire records related to the petitioner's husband detention under Tamil Nadu Act 14 of 1982 vide detention order dated 10.01.2022 on the file of the second respondent herein made in proceedings

Memo C.No.01/PBMMSEC.Act/IS/2022, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband viz, M.Habeeb Rahiman @ Abi, S/o.Mohamed Ismail, aged 45 years, before this Court and set the petitioner's husband at liberty from detention, now the petitioner's husband detained at the Central Prison, Coimbatore. For Petitioner : Mr.W.Camyles Gandhi For Respondents : Mr.M.Babu Muthumeeran Addl. Public Prosecutor

ORDER

(Order of the Court was made by A.D.JAGADISH CHANDIRA, J.) The petitioner is the wife of the detenu M.Habeeb Rahiman @ Abi, S/o.Mohamed Ismail, aged 45 years. The detenu has been detained by the second respondent by his order in C.No.01/PBMMSEC.Act/IS/2022 dated 10.01.2022, holding him to be a "Black Marketeer", as contemplated under the provision of the 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, the learned counsel appearing for the petitioner would mainly focus on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. The learned counsel, by placing authorities, submitted that the representation made on behalf of the petitioner was not considered in time and there was an inordinate and unexplained delay.

4. The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. He would submit that though there was delay in considering the representation, on that score alone, the impugned detention order cannot be quashed. According to the learned Additional Public Prosecutor, no prejudice has been caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

5. The Detention Order in question was passed on 10.01.2022. A representation was made on behalf of the petitioner on 24.01.2022. Thereafter, remarks were called for by the Government from the Detaining Authority on 27.01.2022. The remarks were duly received on 02.02.2022. Thereafter, the Government considered the matter and passed the order rejecting the representation on 11.02.2022.

6. It is the contention of the petitioner that there was a delay of 6 days in submitting the remarks by the Detaining Authority, of which, 2 days were Government Holidays and hence there was an inordinate delay of 4 days in submitting the remarks. It is the further contention of the petitioner that the remarks were received on 02.02.2022 and there was a delay of 8 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 2 days were Government Holidays, hence, there was an inordinate delay of 6 days in considering the representation.

7. In Rekha vs. State of Tamil Nadu (2011 (5) SCC 244), the Honourable Supreme Court has held that the procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities undertaken by the detenu.

8. In Sumaiya vs. The Secretary to Government (2007 (2) MWN (Cr.) 145), a Division Bench of this Court has held that the unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the order of detention.

9. In Tara Chand vs. State of Rajasthan and others, reported in 1980 (2) SCC 321, the Honourable Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.

10. In the subject case, admittedly, there is an inordinate and unexplained delay of 4 days in submitting the remarks by the Detaining Authority and unexplained delay of 6 days in considering the representation by the Hon'ble Minister for Home, Prohibition and Excise Department. The impugned detention order is, therefore, liable to be quashed. In the result, the Habeas Corpus Petition is allowed and the order of detention in C.No.01/PBMMSEC.Act/IS/2022 dated 10.01.2022, passed by the second respondent is set aside. The

detenu, viz., M.Habeeb Rahiman @ Abi, S/o.Mohamed Ismail, aged 45 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS-V) //True Copy// Sub Assistant Registrar nsd/40 To

1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009.

2. The Commissioner of Police/ Detaining Authority, City Police Officer, Huzur Road, Coimbatore City, Coimbatore - 18.

3. The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krishi Bhawan, New Delhi - 110 001.

4. The Superintendent of Prison, Central Prison - Coimbatore, Coimbatore District.

5. The Inspector of Police, CSCID-Pollachi, Coimbatore District.

6. The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

7. The Public Prosecutor, High Court, Madras.

H.C.P.No.92 of 2022 GPL(CO) UMA(28/06/2022)