E. Palanikumar v. The District Collector And

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.08.2015

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.479 of 2015 E. Palanikumar ... Petitioner vs.

1. The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

2. The Secretary to Government Co-operation Food and Consumer Protection Department, Namakkal Kavignar Maaligai, II floor, Secretariat, Chennai-9.

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

4. The Secretary to Government, Food and Consumer Affairs Department Room No.270, Krishi Bhavan, New Delhi 110 001.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the records from the first respondent in M.H.S.Confdl.No.34 of 2015 dated 25.03.2015 by setting aside the said order of detention passed by the first respondent and setting the detenu Selvaraj, aged about 49 years, S/o. Esakki at liberty now detained in the Central Prison Palayamkottai. For petitioner : Mr.K.Prabhu For respondents : Mr. T.Mohan Additional Public Prosecutor

O R D E R

*********** [Order of the Court was made by V.S.RAVI,J] The petitioner is the brother of one Selvaraj. The detenu has been detained as per the order of the first respondent under Section 3(2)(a)

r/w 3(1) of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980(Act No 7 of 1980), branding him as "Black Marketeer".

2. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor 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 25.03.2015. As against the same, the petitioner made a representation on 26.03.2015. The remarks were called for by the Government from the Detaining Authority on 07.04.2015. The remarks were received by the Detaining Authority on 17.04.2015. Thereafter, the Government considered the issue and passed the order rejecting the representation on 24.04.2015. It is the contention of the petitioner that there was delay of eight days on the part of the Detaining authority in considering the representation.

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 eight 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 first respondent, in his proceedings in M.H.S.Confdl.No.34 of 2015 dated 25.03.2015 is quashed. The detenu, by name, Selvaraj, S/o. Esakki aged about 49 years is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.

Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To:

1. The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

2. The Secretary to Government Co-operation Food and Consumer Protection Department, Namakkal Kavignar Maaligai, II floor, Secretariat, Chennai-9.

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

4. The Secretary to Government, Food and Consumer Affairs Department Room No.270, Krishi Bhavan, New Delhi 110 001.

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

6.The Superintendent of Prison, Palayamkottai, Tirunelveli District +1cc to M/S. K.Prabhu, Advocate in SR.No 46216 TS/20.08.2015/3P - 7C AMF/SAR -I ORDER MADE IN H.C.P(MD)No.479 of 2015 13.08.2015