Subadha Begam v. The Secretary To Govt.,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 01.04.2016
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM HCP.No.3041/2015 Subadha Begam ..
Petitioner Vs 1.The Secretary to Government Ministry of Consumer Affairs Food and Public Distribution (Department of Consumer Affairs) No.270, "Krishi Bhavan"
New Delhi 110 001.
2.The Secretary to Government Food & Consumer Protection Department 2nd Floor, Namakkal Kavignar Maaligai Secretariat, Chennai 600 009.
3.The District Collector & District Magistrate Villupuram District, Villupuram.
.. Respondents Petition filed under Article 226 of the Constitution of India praying for a writ of Habeas Corpus calling for the records in C2/22447/2015 dated 15.11.2015 on the file of the third respondent herein and quash the same as illegal and consequently direct the respondents to produce the petitioner's husband Jiavudeen, S/o Sultan, aged about 37 years, who now confined in Central Prison, Cuddalore, before this Court and set him at liberty. For Petitioner :
Mr.K.Gandhi Kumar For Respondents :
Mr.S.Arockiam CGSC for R1 Mr.A.N.Thambi Durai Addl.Public Prosecutor for RR2 and 3
ORDER
[Order of the court was delivered by S.NAGAMUTHU, J.] The Petitioner, who is the wife of the detenu, viz., Jiavudeen, son of Sultan, aged 37 years, has filed this petition challenging the order of detention passed by the 3rd respondent in C2/22447/2015 dated 15.11.2015, branding her husband as a "BLACK MARKETER" under Section 3[2][a] r/w 3[1] of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 [Central 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, dated 28.09.2015. According to the learned counsel for the petitioner, the representation, dated 10.12.
2015, has been received by the Government on 14.12.2015. It is not mentioned as to when the remarks have been called for from the detaining authority. Even assuming that the remarks were called for from the detaining authority on the same day when the representation was received by the Government, i.e., on 14.12.2015, the remarks have been received by the Government only on 28.12.2015, with a delay of fourteen days. He adds that the file was submitted to the Under Secretary on 31.12.2015 and further, the Minster has dealt with the said file of the detenu on 07.01.2016 and rejected on 08.01.2016.
It is his further submission that as per the Proforma submitted by the learned Additional Public Prosecutor, there were six intervening holidays including Government Holidays and even after giving concession as to the intervening holidays, still there is a delay of eight 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 14.12.2015 and that was forwarded to the Detaining Authority, calling for remarks and remarks were received by the Government 28.12.2015 and ultimately, the representation was considered and rejected on 08.01.2016 and the result of the consideration was communicated to the detenu on 11.01.2016. 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 10.12.2015, which was received by the Government on 14.12.2015, remarks have been called for from the detaining authority. The remarks have been received by the Government on 28.12.2015, with a delay of fourteen days and the case of the detenu was dealt with by the Minister only on 07.01.2016 and rejected on 08.01.2016. From the above, it is clear that in between 14.12.2015 and 28.12.2015, [i.e, the intermittent days between the remarks called for and the remarks received], there is a delay of 14 days. Even if we give concession to the six intervening holidays including Government Holidays, namely 19.12.2015 ; 20.12.2015 ; 24.12.2015 ; 25.12.2015 ; 26.12.2015 ; and 27.12.2015, still there is a delay of eight 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 eight 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 eight 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 dated 15.11.2015, passed by the 3rd 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/- Asst.Registrar /true copy/ Sub Asst. Registrar gms To 1.The Secretary to Government Ministry of Consumer Affairs Food and Public Distribution (Department of Consumer Affairs) No.270, "Krishi Bhavan"
New Delhi 110 001.
2.The Secretary to Government Food & Consumer Protection Department 2nd Floor, Namakkal Kavignar Maaligai Secretariat, Chennai 600 009.
3.The District Collector & District Magistrate Villupuram District, Villupuram.
4. The Superintendent Central Prison, Cuddalore
5. The Joint Secretary to Government Public (Law and order) Fort St. George, Chennai-9 6.The Public Prosecutor, High Court, Chennai. 1 cc to Mr.S. Arockiam, Advocate, Sr. 20800 HCP.No.3041/2015 KS (CO) kk 29/4