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2013 DIGILAW 3832 (MAD)

S. Jayabalan v. Secretary to Government

2013-11-06

P.N.PRAKASH, S.RAJESWARAN

body2013
JUDGMENT S. Rajeshwaran, J. 1. The petitioner, who is the father of the detenu viz., Siva @ Sivakumar, has filed this petitioner challenging the order of detention passed by the 2nd respondent in C2/21830/2013 dated 25.07.2013, branding himself as a “Black Marketeer” under section 3 (1) r/w 3 (2) (a) of the prevention of Black Marketing and maintenance of Supplies of Essential Commodities Act 1980, (Act No.7 of 1980) and ordering his detention at Central Prison, Cuddalore. The detenu has been termed as a Black marketeer on the ground that he is involved in three adverse cases and in one ground case. 2. Even though the learned counsel for the petitioner raised many grounds in assailing the impugned order of detention in the petitioner, he confined his arguments only to the ground that the representation of the detenu dated 28.07.2013, has not be considered at all. According to the learned counsel for the petitioner, the representation, dated 28.07.2013, has been received by the Government on 6.8.2013 and remarks have been called for from the detaining authority on 07.08.2013 but, remarks have not been received by the Government. Therefore, on this sole ground of delay, the impugned order of detention is liable to be quashed. In support of this contention, the learned counsel for the petitioner relied on the judgment of the Hon’ble Apex Court in Rajammal vs. State of Tamil Nadu, reported in (1999) 1 SCC 417 . 3. Resisting the contention of the learned counsel for the petitioner, learned Additional Public Prosecutor submitted that the government received the representation on 06.08.2013 and that was forwarded to the detaining Authority, calling for the remarks on 07.08.2013. The Representation of the detenu was received by the collector on 02.08.2013 and ultimately the representation was rejected and the result was communicated to the detenu on 10.08.2013. Therefore, according to the learned Additional Public Prosecutor there is no inordinate delay in considering representation of the detenu and therefore he prayed for dismissal of the petition. 4. We have considered the rival submission carefully with regards to facts and citation and perused the materials available on record. 5. As per the proforma submitted by the learned Additional Public Prosecutor it is seen that on the representative of the detenu, dated 28.07.2013 which was received by the Government on 06.08.2013, remarks have been called for from the detaining authority on 07.08.2013. 5. As per the proforma submitted by the learned Additional Public Prosecutor it is seen that on the representative of the detenu, dated 28.07.2013 which was received by the Government on 06.08.2013, remarks have been called for from the detaining authority on 07.08.2013. But, no remarks have been received by the Government at all. 6. It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representative would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the record produced we find that no acceptable explanation of been offered for the delay. Therefore, we have to hold that the delay has vitiated further detention of the detenu. 7. In the judgment of the Hon’ble Supreme Court in Rajammal’s case (cited supra) it has been held as follows: “It is a constitutional obligation of the government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the constitution for the decision to be taken on the representation the word as soon as may be in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest”. 8. As per the dictum laid down by the Supreme Court in above cited Rajammal’s case number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But here the remarks have not been received by the Government at all. 9. Further in a recent decision in Ummu Sabeena vs. State of Kerala -2011 STPL (WEB) 999 SC, the Supreme Court has held that the history of personal liberty as is well known is a history of insistence of procedural safeguards. The expression ‘as soon as may be ‘, in Article 22 (5) of the constitution of India clearly shows the concern of the makers of the constitution that the representation, made on behalf of the detenu should be considered and disposed of with a sense of urgency and without any avoidable delay. 10. The expression ‘as soon as may be ‘, in Article 22 (5) of the constitution of India clearly shows the concern of the makers of the constitution that the representation, made on behalf of the detenu should be considered and disposed of with a sense of urgency and without any avoidable delay. 10. In the light of the above facts and law, we have no hesitation in quashing the order of detention on the ground of delay on the part of the Government in disposing of the representation of the detenu. 11. Accordingly, the habeas corpus petition is allowed and the detention order in C2/21830/2013 dated 25.07.2013, passed by the 2nd respondent is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case or cause.