V.Kavitha v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.09.2017

CORAM:

THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.(MD) No.777 of 2017 V.Kavitha ... Petitioner -vs1.The Secretary to Government, Department of Co-operation, Food and Consumer Protection, State of Tamil Nadu, Secretariat, Chennai - 600 009.

2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Virudhunagar District, 3.The Additional Secretary to the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krishi bavan, New Delhi-110-001.

4.The Superintendent of Prison, Madurai Central Prison, Madurai District.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to call for the entire records connected with the detention order of the Respondent No.2 in Cr.M.P.No. 01/2017 (Black Marketer) dated 24.05.2017 and Quash the same as illegal and direct the respondents to produce the body or person of the detenu by name Velu, Son of Appuchamy, aged about 43 years, now detained in Madurai Central Prison before this Honourable Court and set him at liberty forthwith.

For Petitioner :

Mr.S.Malaikani For Respondents :

Mr.C.Ramesh Additional Public Prosecutor

O R D E R

[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the wife of the detenu, namely, Velu, Son of Appuchamy, male, aged about 43 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No. 01/2017 (Black Marketer), dated 24.05.2017, holding him to be a "Black Marketer",

as contemplated under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 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 representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay.

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 24.05.2017. The petitioner made a representation, dated 30.05.2017 and the same was received on 05.06.2017. Thereafter, remarks were called for by the Government from the Detaining Authority on 06.06.2017. The remarks were duly received on 16.06.2017. Thereafter, the Government considered the matter and passed the order rejecting the petitioner's representation on 23.06.2017.

6. It is the contention of the petitioner that there was a delay of 10 days in submitting the remarks by the Detaining Authority, of which 2 days were Government Holidays and hence there was an inordinate delay of 8 days in submitting the remarks.

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 8 days in submitting the remarks by the Detaining Authority. 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 Cr.M.P.No. 01/2017 (Black Marketer) dated 24.05.2017, passed by the second respondent is set aside. The detenu, namely, Velu, Son of Appuchamy, male, aged about 43 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(AE) /True Copy/ Sub Assistant Registrar To:

1.The Secretary to Government, Department of Co-operation, Food and Consumer Protection, State of Tamil Nadu, Secretariat, Chennai - 600 009. 2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Virudhunagar District, 3.The Additional Secretary to the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krishi bavan,New Delhi-110-001.

4.The Superintendent of Prison, Madurai Central Prison,Madurai District.

5.The Joint Secretary to Government, (Public Law & Order) Secretariat, Chennai - 600 009.

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

+1cc to M/S.S.MALAIKANI, Advocate SR.No.76735 cp/ns MAS/KK/SAR2:19.09.2017:3P-8C H.C.P.(MD) No.777 of 2017 06.09.2017