Allowed

K.Prema v. The Additional Chief Secretary to Government

Madras HC7 Jun 2024HCP(MD)/249/2024

Case brief

AI extract

What is this about?

Petitioner filed a Habeas Corpus petition challenging her husband's detention as a 'Black Marketeer' under the Prevention of Black Marketing Act. The Court found an unexplained 18-day delay in disposing of her representation and quashed the detention order, directing the detenu's release.

What did the court decide?

Habeas Corpus Petition allowed. Order of detention in M.H.S.Confdl No.20/2024, dated 01.02.2024, set aside. Detenu Kalaignar directed to be released forthwith unless detention required for any other c

K.Prema Vs The Additional Chief… — Constitutional and Fundamental Rights | Madras HC (2024)

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H.C.P.(MD) No.249 of 2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 07.06.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA and THE HONOURABLE MR.JUSTICE K.RAJASEKAR

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H.C.P.(MD) No.249 of 2024

K.Prema

... Petitioner

-vs-

1.The Additional Secretary to Government of India Department of Consumer Affairs Food and Consumer Affairs Department Room No.270, Krishibhavan New Delhi-110 001

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

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3.The District Magistrate and District Collector Tirunelveli District Tirunelveli

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_____________ Page 1 of 9_

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https://www.mhc.tn.gov.in/judis

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4.The Superintendent of Prison Central Prison Palayamkottai Tirunelveli District

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H.C.P.(MD) No.249 of 2024

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... Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the entire records in detention order in M.H.S.Confdl No.20/2024, dated 01.02.2024, on the file of the third respondent and quash the same and direct the respondents herein to produce the body of the petitioner's husband, namely, Kalaignar, son of Marimuthu, aged about 45 years, now confined in Central Prison, Palayamkottai, before this Court and set him at liberty forthwith.

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For Petitioner : Mr.V.M.Jegadeesha Pandian

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For Respondents : Mr.K.Govindarajan Deputy Solicitor General of India for R1 Mr.A.Thiruvadi Kumar Additional Public Prosecutor for R2 to R4

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O R D E R

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[Order of the Court was made by A.D.JAGADISH CHANDIRA, J.]

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The petitioner is the wife of the detenu viz., Kalaignar, son of Marimuthu, aged about 45 years. The detenu has been detained by the third respondent by his order in M.H.S.Confdl No.20/2024, dated 01.02.2024,

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H.C.P.(MD) No.249 of 2024

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holding him to be a "Black Marketeer", as contemplated under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No.7 of 1980. The said order is under challenge in this habeas corpus petition.

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2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

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3. Though several grounds have been raised in the habeas corpus petition, learned counsel for the petitioner focused mainly on the ground that there is an unexplained delay in considering the representation of the petitioner, dated 02.02.2024. According to the learned counsel for the petitioner, though the representation is dated 02.02.2024, the same was received by the Government on 06.02.2024 and the rejection letter was sent to the detenu on 05.04.2024. There is a delay of 18 days in Column Nos.7 to 9 of the Proforma in considering the petitioner's representation. The said delay of 18 days in considering the representation remains unexplained and the same vitiates the impugned detention order. In support of his contention, learned counsel for the petitioner relied on the Judgment of the Honourable

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H.C.P.(MD) No.249 of 2024

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Supreme Court in Rajammal vs. State of Tamil Nadu , reported in (1999) 1 SCC 417 .

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4. Learned Additional Public Prosecutor, on instructions, submitted that after satisfying with the materials placed by the Sponsoring Authority, the Detaining Authority has passed the impugned detention order and there is no illegality or infirmity in the detention order. It is also stated that even if there is any delay in disposal of the representation, it has not caused any prejudice to the rights of the detenu and hence, prayed for dismissal of the habeas corpus petition

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5. As per the submission of the learned counsel for the petitioner and on perusal of the records, we find that the representation of the petitioner is dated 02.02.2024, which was received by the Government on 06.02.2024 and the rejection letter was sent to the detenu on 05.04.2024. As per the proforma submitted the by the learned Additional Public Prosecutor, there is a delay of 18 days in Column Nos.7 to 9 in considering the representation of the petitioner and we find that the said delay remains unexplained.

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H.C.P.(MD) No.249 of 2024

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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 representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of 18 days. Therefore, we have to hold that the delay has vitiated further detention of the detenu.

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7. In the above cited decision of the Honourable Supreme Court in

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Rajammal 's case, it has been held as follows:

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"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 words "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."

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H.C.P.(MD) No.249 of 2024

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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, in the instant case, the inordinate delay of 18 days has not been properly explained.

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9. Further, in a recent decision in Ummu Sabeena vs. State of

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Kerala-2011 STPL (Web) 999 SC , the Honourable Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on 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.

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10. In the light of the above discussion, 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 petitioner.

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H.C.P.(MD) No.249 of 2024

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11. In the result, the Habeas Corpus Petition is allowed and the

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order of detention in M.H.S.Confdl No.20/2024, dated 01.02.2024, passed by

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the third respondent is set aside. The detenu, viz., Kalaignar, son of Marimuthu, aged about 45 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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[A.D.J.C., J.] [K.R.S., J.]

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07.06.2024

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NCC : Yes / No Index : Yes / No Internet : Yes / No

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krk

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To:

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1.The Additional Secretary to Government of India, Department of Consumer Affairs, Food and Consumer Affairs Department, Room No.270, Krishibhavan, New Delhi-110 001.

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

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_____________ Page 7 of 9_

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https://www.mhc.tn.gov.in/judis

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H.C.P.(MD) No.249 of 2024

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

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4.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

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

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https://www.mhc.tn.gov.in/judis

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H.C.P.(MD) No.249 of 2024

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A.D.JAGADISH CHANDIRA, J. AND K.RAJASEKAR, J. krk

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H.C.P.(MD) No.249 of 2024

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07.06.2024

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_____________ Page 9 of 9_

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https://www.mhc.tn.gov.in/judis

K.Prema v. The Additional Chief Secretary to Government

Case brief

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K.Prema v. The Additional Chief Secretary to Government

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