K.Anitha, F/40 Yrs v. State Rep. By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 02.11.2017 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.1577 of 2017 K.Anitha ... Petitioner Vs.

1.State Rep. By Secretary of State Co-operation, Food & Consumer Protection Department, 2nd Floor, Namakkal Kavingnar Maligai St. George Fort Chennai - 600 009.

2.The District Collector, Krishnagiri District Tamil Nadu.

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

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

...Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records relating to the detention order dated 17.07.2017 made in detention order Memo No.S.C.No.42/2017 (CS) dated 17.07.2017 passed by the 2nd respondent herein quash the same and direct the respondents to produce the body or person of the petitioner's husband Kamaraj, Age 44, Son of Thimmichetty ordinarily residing at No.53, Pilliayar Kovil Street, Chinna Bargur Village, Bargur

Post, Bargur Taluk, Krishnagiri District as Balck Marketer and now confined in Central Prison, Salem set him at liberty forthwith.

For Petitioner : Mr.S.C.Vishwanth For Respondents : Mr.V.M.R.Rajentran, Addl. Public Prosecutor for R1 & R2 Mr.S.Arokiam for R3 & R4

O R D E R

(Order of the Court was made by N.SATHISH KUMAR, J) The petitioner is the wife of the detenu, namely, Kamaraj, S/o.Thimmichetty , male, aged about 44 years. The detenu has been detained by the second respondent by his order in S.C.No.42/2017 (CS) dated 17.07.2017, holding him to be a "Black Marketeer", as contemplated under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act No.7 of 1980). The said order is under challenge in this Habeas Corpus Petition.

2. We have heard the learned counsel 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 his argument 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 representations made by the petitioner was not considered on time and there was an inordinate and unexplained delay with regard to the same.

4. The learned Additional Public Prosecutor opposed the Habeas Corpus Petition. 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 17.07.2017. The petitioner made a representation, dated 04.08.2017 and the same was received on 10.08.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 11.08.2017. The remarks were duly received on 07.09.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 14.09.2017.

6. It is the contention of the petitioner that there was a delay of 27 days in submitting the remarks by the Detaining Authority, of which 8 days were Government Holidays and hence there was an inordinate delay of 19 days in submitting the remarks. Thereafter, there was another delay of 7 days in considering the representation, of which 2 days were Government Holidays and hence there was an inordinate delay of 5 days in considering the representation.

7. In Rekha vs. State of Tamil Nadu, reported in 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, reported in 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 19 days in submitting the remarks by the Detaining Authority and 5 days in considering the representation. The impugned detention order is, therefore, liable to be quashed.

11. In the result, the Habeas Corpus Petition is allowed and the order of detention in S.C.No.42/2017 (CS) dated 17.07.2017, passed by the second respondent is set aside. The detenu, namely, Kamaraj, S/o.Thimmichetty, male, aged about 44 years, is directed to be released forthwith unless his detention is required in connection with any other case. Given the nature of

the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar vsm To 1.The Secretary, State Co-operation, Food & Consumer Protection Department, 2nd Floor, Namakkal Kavingnar Maligai St. George Fort Chennai - 600 009.

2.The District Collector, Krishnagiri District Tamil Nadu.

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

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

5.The Superintendent, Central Prison, Salem.

6.The Public Prosecutor, Madras High Court, Chennai.

+1 cc to M/s.S.C.Vishwanath Advocate sr 77860 +1 cc to M/s.A.Arockiam Advocate sr 77618 H.C.P.No.1577 of 2017 aa02/11/2017