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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, M. NIRMAL KUMAR, JJ.
Lakshmi Devi W/o. Mr. Santhosh Kumar - Petitioner
Versus
Secretary to Government, Government of India Ministry of Consumer Affairs Food and Public Distribution (Department of Consumer Affairs) & Ors. - Respondents
H.C.P. No. 2139 of 2022
Decided On : 13-02-2023
Constitution of India, 1950 - Article 22(5) - Black Marketeer' vide 'Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Assailing a 'detention order - Captioned 'Habeas Corpus Petition' has been filed by spouse of detenu in this Court assailing a 'detention order bearing reference PBMMSEC made by 'third respondent i.e., jurisdictional District Collector' - To be noted, sixth respondent i.e., jurisdictional Inspector of Police is Sponsoring Authority - Held, Careful perusal of above makes it clear that there delay which remains unexplained - Delay is long enough and it also remains unexplained - Delay in considering representation is a facet of infraction of constitutional safeguard ingrained in Article 22(5) of Constitution of India - In case on hand, delay is clearly an infraction of facet of Article 22(5) of Constitution of India and therefore, impugned detention order cannot but be dislodged on this ground - Before concluding, court also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ - HCP allowed.
ORDER :
M. Sundar, J.
Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] has been filed by the spouse of detenu in this Court on 18.10.2022 assailing a 'detention order dated 06.10.2022 bearing reference PBMMSECA No.8/2022' [hereinafter 'impugned detention order' for the sake of convenience and clarity] made by the 'third respondent i.e., jurisdictional District Collector' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, sixth respondent i.e., jurisdictional Inspector of Police is the Sponsoring Authority.
2. Ms. G. Gayathri, learned counsel representing the counsel on record for petitioner and Mr. R. Muniyapparaj, learned Additional Public Prosecutor for all the six respondents are before us.
3. The impugned detention order has been made by the Detaining Authority inter alia on the premise that the detenu is a 'Black Marketeer' vide 'Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act No.7 of 1980)' [hereinafter 'Black Marketing and EC Act' for the sake of convenience and clarity].
4. In petitioner's campaign against impugned detention order, one point finds favour with us and that point is delay in considering the representation.
5. Learned counsel for the petitioner submits that the petitioner sent a representation but there is delay in considering the same. In response to this, learned Additional Public Prosecutor submitted that the representation of the detenu was received on 19.10.2022 and learned Additional Public Prosecutor placed before us a chronicle which reads as follows :
6. A careful perusal of the above makes it clear that there is 30 days delay which remains unexplained. Delay is long enough and it also remains unexplained. Delay in considering the representation is a facet of infraction of constitutional safeguard ingrained in Article 22(5) of Constitution of India. In the case on hand, the delay is clearly an infraction of the facet of Article 22(5) of Constitution of India and therefore, the impugned detention order cannot but be dislodged on this ground.
7. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
8. Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 06.10.2022 bearing reference PBMMSECA No.8/2022 made by the third respondent is set aside and the detenu Mr. Santhosh Kumar, son of Mr. Chandiran is directed to be set at liberty forthwith, if not required in connection with any other case / cases.
9. Captioned HCP ordered on the above terms. There shall be no order as to costs.
The delay in considering representation in preventive detention orders cannot be decided quantitatively but qualitatively based on the facts and circumstances of each case.
The central legal point established in the judgment is the constitutional obligation of the government to consider representations without delay, emphasizing the history of insistence on procedural s....
The central legal point established in the judgment is the constitutional obligation and procedural safeguards under Article 22(5) of the Constitution of India, emphasizing the need for expeditious c....
The delay in considering a representation against a preventive detention order, which vitiates the impugned detention order.
The delay in considering the representation against a preventive detention order can vitiate the impugned detention order if it infringes the detenu's rights.
The delay in considering the representation against a preventive detention order must be justified and must not violate the detenu's rights under the Constitution of India.
Point of law: Section 9 of the Act provides for constitution of Advisory Boards and Section 10 requires the Government to place before the Advisory Board the grounds on which the order of detention h....
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