G.Vijayashanthi v. The Additional Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.09.2015

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.1002 of 2015 G.Vijayashanthi .. Petitioner Vs.

1. The Additional Secretary to Government of India, Ministry of Consumer Affair Food and Public Distribution (Department of Consumer Affair) Room No.270, Krishi Bhavan, New Delhi - 110001.

2.The Principal Secretary to Government, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai - 600 009.

3.The District Magistrate and District Collector, Velunachiyar Valagam, Dindigul District, Dindigul. ..Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the records relating to the Detention Order passed by the 3rd respondent in Detention Order No.46/2015 (CS), dated 15.6.2015 and quash the same and direct the respondents to produce the person or body of the detenu, M.Ganapathi, aged 42 years, S/o.Murugesan, now detained at Central Prison, Madurai, before this Honouorable Court and set him at liberty. For Petitioner : Mr.K.Seemaraj For RR 2 & 3 : Mr.T.Mohan Additional Public Prosecutor For R1 : Mr.R.Nandakumar Central Government Standing Counsel

O R D E R

*********** [Order of the Court was made by V.S.RAVI,J] The petitioner is the wife of the detenu, namely M.Ganapathi. The detenu has been detained as per the order of the third respondent under Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980(Central Act 7 of 1980), branding him as "Black Marketeer".

2. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor and also learned Central Government

standing counsel for the respondents and we have also perused the records carefully.

3. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the Petitioner would mainly focus his argument on the ground that there is violation of procedural safeguards, which are guaranteed under Articles 21 and 22 of the Constitution of India. The learned counsel would submit that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay. The learned counsel has relied on few Judgments of the Hon'ble Supreme Court. Based on the same, the learned counsel would plead for setting aside the detention order.

4. But, the learned Additional Public Prosecutor would, however, oppose this Habeas Corpus Petition. He would submit that though there was delay in considering the representation, on that score, the impugned detention order need not be interfered with, as on account of the said delay, 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. We have considered the above submissions.

6. In this case, the Detention Order was passed on 15.06.2015. As against the same, the petitioner made a representation on 01.07.2015. The remarks were called for by the Government from the Detaining Authority on 07.07.2015. The remarks were received on 15.07.2015. Thereafter, the Government considered the issue and passed the order rejecting the representation on 22.07.2015. It is the contention of the petitioner that there was delay of six days in submitting the remarks by the Detaining Authority and there was delay of one day on the part of the Government in considering the same.

7. Now, the question is as to whether on that score, the impugned order can be quashed.

8. In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble Supreme Court has held that the right to life and liberty of a person is protected, under Article 21 of the Constitution of India. The Hon'ble Supreme Court has further 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 of the detenu.

9. 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/detenue would be sufficient to set aside the detention order.

10. In Tara Chand Vs. State of Rajasthan and others, [1980 (2) SCC 321], the Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. This dictum has been followed in several Judgments consistently by the Hon'ble Supreme Court as well as this Court.

11. Applying the said dictum laid down by the Hon'ble Supreme Court, if we look into the facts of the present case, undoubtedly, there

is an inordinate and unexplained delay of seven working days and therefore, the impugned detention order is liable to be quashed.

12. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order passed by the third respondent in Detention Order No.46/2015(CS), dated 15.06.2015, is quashed. The detenu, by name, M.Ganapathi, aged 42 years, S/o.Murugesan, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.

Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub Assistant Registrar.

To

1. The Additional Secretary to Government of India, Ministry of Consumer Affair Food and Public Distribution (Department of Consumer Affair) Room No.270, Krishi Bhavan, New Delhi - 110001.

2.The Principal Secretary to Government, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai - 600 009.

3.The District Magistrate and District Collector, Velunachiyar Valagam, Dindigul District, Dindigul.

4. The Superintendent of Prison, Central Prison, Madurai.( with copies to communicate to the detenu)

5. The Joint Secretary to Government Public (Law and Order)Department, Fort St.George, Chennai.

6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Copy to: The Superintendent, District Jail, Dindigul +1CC to M/s.K. Seemaraj,Advocate, SR.No. 56242. ORDER MADE IN H.C.P(MD)No.1002 of 2015 23.09.2015 AM/29.09.2015/AAL.MPA/SAR-I/3P/10C