Prema v. The Secretary To The Govt.,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2016
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE P.N.PRAKASH H.C.P.No.2125 of 2015 Prema ..
Petitioner Vs.
1.The Secretary to the Government, Department of Consumer Affairs Government of India,, Krishi Bhawan New Delhi 110001.
2.The Secretary to Government Food & Consumer Protection Dept., Secretariat, Chennai 600 009.
3.The District Magistrate & District Collector Vellore District, Vellore-9.
.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus calling for the records in connection with the order of Detention passed by the third respondent dated 30.07.2015 in C3.D.O.No.77/2015 against the petitioner husband Christopher, male, aged 50 years, son of Jebamani, who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner : Mr.D.Balaji For R1 : Mr.G.Venkatesan, CGC For RR 2 and 3 : Mr.M.Maharaja, APP
O R D E R
[Order of the Court was made by P.N.PRAKASH, J.] The petitioner herein is the wife of the detenu and she has
filed this petition challenging the order of detention passed by the third respondent in C3.D.O.No.77/2015 dated 30.07.2015, branding her husband as a "BLACK MARKETER" under the Tamil Nadu Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 [Act 7 of 1980]. 2.Even though the learned counsel for the petitioner raised many grounds in assailing the impugned order of detention in the petition, he confined his arguments only to the ground of delay in considering the representation of the detenu. According to the learned counsel for the petitioner, the representation of the detenu dated 24.08.2015, has been received by the Government on 27.08.2015 and remarks have been called for from the detaining authority on 01.09.2015; but, the remarks have been received by the Government only on 21.09.
2015, after a delay of 20 days. He adds that the file was dealt with by the Minister concerned on 01.10.2015 and the rejection letter was prepared and communicated to the detenu also on the same day, i.e., on 01.10.2015. It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were 7 intervening holidays and even after giving concession as to the intervening holidays including Government Holidays, still there is a delay of 13 days, which remains unexplained. The unexplained delay in considering the representation of the detenu vitiates the detention order. In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Rajammal Vs. State of Tamil Nadu, reported in (1999) 1 SCC 417. 3.
Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the Government received the representation on 27.08.2015 and that was forwarded to the Detaining Authority, calling for remarks on 01.09.2015 and remarks were received by the Government on 21.09.2015 and ultimately, the representation was considered and rejected on 01.10.2015 and the result of the consideration was communicated to the detenu on the same day, i.e., on 01.10.2015. Therefore, according to the learned Additional Public Prosecutor, there is no inordinate delay in considering the representation of the detenu and therefore, he prayed for dismissal of the petition.
4.We have considered the rival submissions carefully with regard to facts and citation and perused the materials available on record.
5.As per the Proforma submitted by the learned Additional Public Prosecutor, on the representation of the detenu dated 24.08.2015 was received by the Government on 27.08.2015 and
remarks have been called for from the detaining authority on 01.09.2015. But, remarks have been received by the Government only on 21.09.2015, i.e., after a delay of 20 days and the case of the detenu was dealt with by the Minister concerned on 01.10.2015 and the same was rejected on the same day, i.e., on 01.10.2015. From the above, it is clear that in between 01.09.2015 and 21.09.2015, [i.e., the intermittent days between the remarks called for and the remarks received] there is a delay of 20 days. Even if we give concession to the 7 intervening holidays including Government holidays, namely 05.09.2015, 06.09.2015, 12.09.2015, 13.09.2015, 17.09.2015, 19.09.2015 and 20.09.2015, still there is a delay of 13 days, which remain unexplained.
6.It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of 13 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.
7.In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows: "It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest."
8.As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here 13 days delay has not been properly explained at all. 9.Further, in a recent decision in Ummu Sabeena vs. State of Kerala - 2011 STPL (Web) 999 SC, the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the
detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.
10.In the light of the above fact and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the detenu.
11.Accordingly, the habeas corpus petition is allowed and the detention order passed by the third respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case. Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar AP To 1.The Secretary to the Government, Department of Consumer Affairs Government of India,, Krishi Bhawan New Delhi 110001.
2.The Secretary to Government Food & Consumer Protection Dept., Secretariat, Chennai 600 009.
3.The District Magistrate & District Collector Vellore District, Vellore-9.
4.The Superintendent, Cntral Prison, Vellore. 5.The Joint Secretary to Government, Public (Law and Order), Fort St.George, Chennai 9.
6.The Public Prosecutor, High Court, Madras.
H.C.P.No.2125 of 2015 nm co kra 28.01.2016