DURAIPANDY Vs. SECRETARY TO THE GOVERNMENT FOOD CO OPERATION AND CONSUMER PROTECTION DEPARTMENT CHENNAI

JUDGEMENT

(1.) THE petitioner, who is the father of the detenu, Moorthy, who was detained at Central Prison, Madurai, pursuant to the order of detention dated 10. 3. 2007 passed under Sections 3(2)(a) read with 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, (Act 17 of 1980) branding him as 'Black Marketeer', has filed this writ petition for issue of a Writ of Habeas Corpus to call for the records in connection with the order of detention dated 10. 3. 2007 passed by the second respondent in C. M. P. No. 1 of 2007 (CS) against the petitioner's son, Moorthy, to set aside the same and to direct the respondents to produce the above said detenu before this Court and set him at liberty.

(2.) ACCORDING to the detaining authority, viz. , the second respondent, the ground case is said to have taken place on 19. 2. 2007. On receipt of credible information that the provisions of Essential Commodities Act, 1955, are being violated or may be violated, the District Supply Officer along with the police party, conducted vehicle check near Bykara Arch in Madurai City, during which a lorry was intercepted and 205 bags of rice meant for Public Distribution System were found in that lorry. During interrogation, the detenu gave a voluntary statement admitting the offence, on the basis of which a case was registered in Madurai CSCID Cr. No. 112/07 under Section 6(3)(4) of TNSC (RDCS) Order 1982 read with Section 7(i) a (ii) of Essential Commodities Act, 1955 and under Sections 409 and 414 I. P. C. The detenu was arrested and sent for judicial remand.

(3.) 1. Before delving into the issue relating to the delay as contended above, it would be apt to refer the law on the point. 5. 2. Article 22(5) of the Constitution of India suggests that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under the relevant provisions of law, vide K. M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476. 5. 3. The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India, vide Ram Sukrya Mhatre v. R. D. Tyagi, 1992 Supp (3) SCC 65. 5. 4. Any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 and Raghavendra Singh v. Supdt. , Distt. Jail, (1986) 1 SCC 650. 5. 5. 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. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. If delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. Even the reason that the Minister was on tour and hence there was a delay of five days in disposing of the representation was rejected by the Apex Court holding that when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved, the absence of the Minister at head quarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen, vide Rajammal v. State of T. N. , (1999) 1 SCC 417.