Palanisamy, Aged 43 Years, v. Govt. Of Tamilnadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.06.2018

CORAM:

THE HON'BLE DR. JUSTICE S.VIMALA AND THE HON'BLE MRS. JUSTICE S.RAMATHILAGAM H.C.P.No.502 of 2018 Palanisamy ... Petitioner/Brother of the Detenue versus

1. Government of Tamilnadu, Rep. by its Secretary, Co-operation, Food and Consumer Protection Department, Fort St. George, Chennai - 600 009.

2. The District Magistrate and District Collector, Salem District, Salem.

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

... Respondents Habeas Corpus Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Habeas Corpus, to call for the records in Detention Order in No.C.M.P.No.04/PBMMSEC Act/2017 (C2) dated 28.12.2017 on the file of the 2nd respondent herein and set aside the same and direct the respondents herein to produce the body of the petitioner's brother Thiru Marameri Govindan @ Govindaraj, son of Venkatachalam, aged 46 years, the detenu herein now confined in Central Prison, Salem before this Court and set him at liberty.

For Petitioner :

Mrs.R.Subhadra Devi For R3 :

Mr.S.Arockiam, CGSC For R1 and R2 : Mr.R.Prathap Kumar Additional Public Prosecutor

ORDER

(DELIVERED BY DR. S.VIMALA, J.) The second respondent, District Magistrate and District Collector, Salem District, clamped an order of detention on 28.12.2017 as against Marameri Govindan @ Govindaraj, S/o. Venkatachalam, as the said authority arrived at the subjective satisfaction that the said detenu is a 'Black Marketeer' and he has to be detained under Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7 of 1980) with a view to preventing him from acting prejudicial to the interest of public health and public order.

2. Challenging the order of detention, the brother of the detenu has come forward with the present Habeas Corpus Petition.

3. Heard Mrs.R.Subhadra Devi, learned counsel appearing for the petitioner and Mr.R.Prathap Kumar, learned Addl. Public Prosecutor appearing for the respondents 1 and 2.

4. It is contended that there is a delay in considering the representation and this has rendered the detention illegal. Learned Addl. Public Prosecutor appearing for the respondents submits that though there is only a delay of 26 days, but it in no way vitiates the order of detention. Though such a contention is advanced, however, no explanation has been adduced by the respondents explaining the delay.

5. In Rashid Kapadia v. Medha Gadgil, (2012 (11) SCC 745), the Supreme Court had occasion to consider the effect of delay in considering the representation and in that context held as under :- "13.It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the authority concerned as expeditiously as possible, is a constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the authorities on this aspect, except to take note of a couple of

judgments where the principle is discussed in detail. They are: Mohinuddin v. District Magistrate, Beed [(1987) 4 SCC 58 : 1987 SCC (Cri) 674] and Harshala Santosh Patil v. State of Maharashtra [(2006) 12 SCC 211 : (2007) 1 SCC (Cri) 680]."

6. In view of the above proposition, the delay in considering the representation submitted by the petitioner, which has not been explained properly, has vitiated the order of detention. The delay is fatal to the order of detention and this has rendered the detention illegal.

7. On this short ground, the order of detention is quashed. The habeas corpus petition is allowed. The detenu, Marameri Govindan @ Govindaraj, S/o. Venkatachalam, is ordered to be set at liberty forthwith, unless his custody is otherwise required in any other case.

Sd/- Assistant Registrar(CS-v) //True Copy// Sub Assistant Registrar ogy To

1. THE SECRETARY, CO-OPERATION, FOOD AND CONSUMER PROTECTION DEPARTMENT, FORT ST. GEORGE, CHENNAI - 600 009.

2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, SALEM DISTRICT, SALEM.

3. THE ADDITIONAL SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF CONSUMER AFFAIRS FOOD AND PUBLIC DISTRIBUTION DEPARTMENT OF CONSUMER AFFAIRS ROOM NO.270, KRISHI BHAVAN, NEW DELHI - 110 001.

4. THE SUPERINTENDENT OF POLICE, CENTRAL PRISON, SALEM.

5. THE JOINT SECRETARY TO GOVERNMENT, PUBLIC (LAW & ORDER), FORT SAINT GEORGE, CHENNAI 9

6. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS.

+1cc to Mr.S.AROCKIAM, CGSC, S.R.No. 38926 H.C.P.No.502 of 2018 CA(CO) TR(03/07/2018)