Procedural violations and non-application of mind by the competent authority can render a detention order unsustainable in law.

K.N. BASHA, J.

1. The petitioner, who is the mother of the detenu viz., Senthamaraikannan, has come forward with this petition challenging the order of detention dated 27.04.2012 passed by the second respondent, slapped on her son, branding him as 'Black Marketeer' under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

2. Mr.V.Paarthiban, learned counsel appearing for the petitioner, though raised several other grounds, mainly contended that the detenu's mother preferred a representation dated 14.05.2012 to the third respondent, namely, Secretary to the Government, Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), New Delhi, but the same was stated to have been rejected through a telegraphic communication and the rejection order was not served. It is contended that even the said telegram reveals that the same was sent by one T.TOPPO for Under Secretary to the Government of India, Department of Consumer Affairs, Krishi Bhawan, New Delhi and as such, it is very clear that the report was not considered by the third respondent and the same ought to have been considered only by the Under Secretary, which is in violation of statutory obligation conferred on the Secretary. It is further contended that the detenu has the Fundamental Right under Article 22(5) of the Constitution of India for making a representation challenging the detention order, but the said right was infringed by the careless attitude of the third respondent herein as he has not even considered the representation and on the other hand, a telegraphic communication was sent to the effect of informing that his representation was rejected through an officer for the Under Secretary. It is pointed out by the learned counsel for the petitioner that a Division Bench of the Kerala High Court, in Mrs.Lekha Nandakumar v. Joint Secretary to Govt. of India, Ministry of Finance and Others reported in 2004 CRI.L.J. 3797, held that sending mere communication is not sufficient and it is incumbent on the authorities to send the rejection order to the detenu and as such, it was held that the detention order will not stand as there is procedural violation. The learned counsel for the petitioner also pointed out that by placing reliance on the said decision, similar view was taken by a Division Bench of this Court in a unreported decision in H.C.P.No.329/2009 by the order dated 08.07.2009 [P.Sekaran v. The Secretary to Govt. Coopertion, Food and Consumer Protection Department, Secretariat, Chennai 600009 and Others].

3. Heard, Mr.V.Kadhirvelu, learned Central Government Standing Counsel for the third respondent on the submissions made by the learned counsel for the petitioner. It is contended that only after careful consideration of the representation by the Central Government, the rejection order was passed and the same was intimated to the detenu through the telegram. It is submitted, on instructions, that only telegraphic communication was sent and the rejection order was not sent.

4. Mr.K.P.Ananthakrishna, learned Additional Public Prosecutor appearing for the State Government submitted that there is no lapse on their part.

5. We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the entire materials available on record including the impugned detention order and its grounds.

6. At the outset, it is to be stated that a representation dated 14.05.2012 was sent by the detenu through his mother to the third respondent, namely, Secretary to the Government, Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), New Delhi, but the fact remains that the authorities have sent only a telegraphic communication dated 03.07.2012 intimating their inability to accede to the request to revoke the order of detention on the basis of the representation dated 14.05.2012. The perusal of the said commu