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Judgment
M. Jaichandren, J.—This Habeas Corpus Petition has been filed to call for the records relating to the order of the third respondent, dated
26.11.2012, made in C3.D.O. No. 80/2012, and quash the same, and to produce the petitioner''s husband, namely, Dhanapal S/o. Pallipattan,
aged about 47 years, confined in the Central Prison, Vellore, Vellore District, before this Court and to set him at liberty. The detenu, namely,
Dhanapal son of Pallipattan, has been detained, u/s 3(2)(a) of the Prevention of Black-marketing and Maintenance of Essential Commodities Act,
1980 (Act No. 7 of 1980), pursuant to the order passed by the third respondent, in his proceedings No. C3.D.O. No. 80/2012, dated
26.11.2012. In view of the detention order passed by the third respondent, dated 26.11.2012, the detenu had been lodged in the Central Prison,
Vellore, Vellore District.
Even though various grounds had been raised by the petitioner, in the present Habeas Corpus petition, while challenging the order of detention,
passed by the third respondent, the learned counsel appearing on behalf of the petitioner had submitted that the order of detention passed by the
third respondent, on 26.11.2012, is liable to be set aside, as the representation, dated 27.11.2012, sent to the first respondent, on behalf of the
detenu, had not been considered, till date. As such, the detention order passed by the third respondent, on 26.11.2012, is liable to be set aside.
The learned counsel appearing on behalf of the petitioner had referred to Paragraphs-4 and 5 of the grounds of detention, which read as follows:
I am aware that Thiru. Dhanapal is a habitual Black Marketeer and he has committed the above said offences. Hence, he has acted in a manner
prejudicial to the Maintenance of Supplies of Commodities essential to the community under the Public Distribution System. The offence
committed by him are punishable u/s. 6(4) of TNSC (R.D.C.S.) Order 1982 r/w. 7(1)a(ii) of EC Act 1955 and 353, 506(ii), 307 IPC. Further, it
is obvious that in the ground case, Thiru Dhanapal had gone to the extent of assaulting the Special Sub Inspector of Police using iron pipe. I am
aware that Thiru Dhanapal by his activities committed the offence of illicitly selling PDS rice at a higher price for getting higher profit and thereby
acted in a manner prejudicial to the Maintenance of Supplies of Commodities essential to the community. I am therefore satisfied that an order of
detention should be passed against Thiru Dhanapal with a view to prevent him from indulging in such prejudicial activities in future.
I am aware that Thiru Dhanapal was produced before the Judicial Magistrate Court-IV, Vellore, in Civil Supplies, CID, Vellore Unit Crime No.
313/2012 u/s. 6(4) of TNSC (RDCS) Order 1982 r/w. 7(1)(a)(ii) of E.C. Act 1955 and 353, 506(ii), 307 IPC on 15.11.2012 at 4.00 PM and
remanded to judicial custody and lodged at Central Prison, Vellore, till 29.11.2012 as remand prisoner. He has filed a Bail application in Civil
Supplies, CID, Vellore Unit Crime No. 313/2012 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and 353, 506(ii), 307
IPC before the Principal District Sessions Judge, Vellore, in Crl. M.P. No. 4608/2012 and the same is pending. In the previous cases registered
against Thiru Dhanapal, aged 49, S/o. Pallipattan, Prasath Nagar, Near Mottur Water Tank, Melmonavur village, Vellore Taluk, Vellore in Cr.
Nos. 547/2010 and 586/2010 u/s. 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 he was arrested and remanded. He filed
bail applications for those cases in Crl. M.P. Nos. 5844/2010 and 5208/2011 respectively before the Court of Judicial Magistrate-IV, Vellore
and bail was granted on 11.10.2010 and 20.09.2011 respectively. In a similar case registered at Civil Supplies, CID, Vellore Unit in Crime No.
594/2011 u/s. 6(4) of TNSC bail was granted to the accused Thiru. Dhanapal, aged 49, S/o. Pallipattan, Prasath Nagar, Near Mottur Water
Tank, Melmonavur village, Vellore Taluk, Vellore, by the Hon''ble Madras High Court vide Crl. O.P. No. 23772/2011 dated 10.10.2011.
Hence, I infer that it is very likely of his (Thiru Dhanapal) coming out on bail in the above Crime No. 313/2012 u/s. 6(4) of TNSC (RDCS) Order
1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and 353, 506(ii), 307 IPC since bails are granted by the courts in such cases. If he comes out on bail, he
will indulge in such further activities in future as well, which will be prejudicial to the maintenance of supplies of commodities essential to the
community. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such
activities, which are prejudicial to the maintenance of supplies of commodities essential to the community. On the materials placed before me, I am
satisfied that the said Thiru Dhanapal is a Black Marketeer and there is a compelling necessity to detain him in order to prevent him from indulging
in the acts which are prejudicial to the maintenance of Supplies of Commodities essential to the community under the provisions of 3(1) of the
Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No. 7 of 1980).
Per contra, the learned counsel appearing on behalf of the respondents 2 and 3 had submitted that the detention order had been passed by the
detaining authority after arriving at the subjective satisfaction, based on the cogent materials available before him. He had further submitted that the
order of detention passed by the detaining authority does not suffer from non-application of mind, by the said authority.
In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, and on a perusal of
the records available, it is noted that the representation, dated 27.11.2012, sent on behalf of the detenu had been received by the first respondent,
on 30.11.2012. However, the said representation had not been considered by the first respondent, till date.
In a number of decisions, the Apex Court, as well as the various High Courts, have made it clear that the delay in disposing of the representation
would vitiate the order of detention. Some of them are as follows:
Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others,
Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi
Rajammal Vs. State of Tamil Nadu and Another,
Senthil Kumar Vs. The District Magistrate and District Collector and State of Tamil Nadu
Jakkulin Vs. State of Tamil Nadu (2008 (2) MLJ (Crl.) 1571)
State of Tamil Nadu Rep. by its Secretary to Government, Home, Prohibition and Excise (IX) Department, 15., Chennai and Another (2009
(1) MWN (Cr.) 400 (DB)
6.1. In Ramamurthy Vs. The State of Tamil Nadu, this Court had set aside the order of detention on the ground of delay in considering the
representation made on behalf of the detenu.
6.2. In Kalaiselvi. G. Vs. The State of Tamil Nadu (2007 (5) CTC 657), a Full Bench of this Court had held as follows:
The last contention is relating to delay in disposal of the representation. It is by now well recognised that the authorities concerned are duty
bound to afford to the detenu an opportunity of making representation and such right of the detenu obviously encompasses the corresponding duty
that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay and the result of
such representation should also be communicated without unnecessary delay. This position is apparent from several decisions of the Supreme
Court, including the decision Usha Agarwal Vs. Union of India (UOI) and Others, , wherein, after referring to the Constitution Bench decision of
the Supreme Court in Kamleshkumar Ishwardas Patel Vs. Union of India (UOI) and Others, it was observed:
This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay,
where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention.
6.3. In fact, this Court, in its order, dated 9.11.2011, in Smt. Sowdun Bivi Vs. The State of Tamilnadu (H.C.P. No. 108 of 2011), has clarified
the position relating to the issue regarding the consideration of the representation made on behalf of the detenu, referring to the Full Bench decision
of this Court, in Rajammal Vs. State of Tamil Nadu and Another, Thus, it is clear from the catena of cases decided by the Supreme Court that
there is an obligation cast on the Detaining Authority, as well as the State Government, to consider the representation made on behalf of the
detenu, as early as possible, as per the mandate enshrined in Clause (5) of Article 22 of the Constitution of India.
6.4. In a recent decision, in Ummu Sabeena Vs. State of Kerala and Others, the 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.
In such circumstances, the impugned detention order passed by the third respondent, dated 26.11.2012, is set aside and this Habeas Corpus
petition is allowed. Consequently, the detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other
case or cause.