Nagamani vs Commissioner of Police, Greater Chennai, Egmore, Chennai and State

P. Thangavel, J.—This Habeas Corpus Petition has been filed by the petitioner, the father of the detenu praying for issuance of Writ of

Habeas Corpus, to call for the records pertaining to the detention order dated 27-11-2001 and quash the same and set the detenu Senthil Kumar

at liberty forthwith.

The facts that are necessary for disposal of this petition, as follows:

The Inspector of Police, Civil Supplies, CID, Chennai Unit, Chennai, on cogent and reliable information that P.D.S.rice were being illegally

hoarded at a godown in the area of Mattumanthai, Kaladipet, Thiruvotiryur, Chennai and on the direction issued by the higher officers, along with

his police party, proceeded to the above said place at 2100 hours on 22-11-2001. On the search made by the said police party, they found 50

bags of P.D.S.rice in the godown bearing No.52, Srinivasapuram, West Mada Street, Kaladipet, Thiruvotriyur, Chennai-19 and the detenu was in

possession of the said P.D.S.rice. The detenu was arrested and confessional statement was recorded in connection with the transport of the

P.D.S.rice. According to the confessional statement, the detenu used to purchase rice from the ration shops of Kaladipet and Thiruvotriyur area

and sell it to the dealers coming from Andhra at high rates. The detenu had not shown any licence to do such business. The above said 50 bags of

P.D.S.rice weighing 100 kgs. each were recovered under cover of Mahazar attested by witnesses. The detenu along with the said P.D.S.rice was

brought to the Civil Supplies C.I.D. Chennai unit office and registered a case in Cr.No.277 of 2001 under Cl.4(1) and 19(1) of TNETA

(respondent) Order 1984, and Section 6(2)(3) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of E.C.Act 1955 at 2330 hours on 23-11-

2001. The Inspector of Police, based on the confessional statement and material evidence collected during the raid, after handing over the rice to

Tamil Nadu Civil Supplies Corporation Godown, Chennai Region, recommended for detention of the detenu under Prevention of Black-marketing

and Maintenance of Supplies of Essential Commodities Act, 1980 as Sponsoring Authority.

The detaining authority, after considering the material evidence placed before it, has ordered for the detention of the detenu, namely, Senthil

Kumar u/s 3(2)(b) read with Section 3(1) of the Central Act 7 of 1980 on 27-11-2001.

The learned counsel appearing on behalf of the petitioner raised the sole contention that the detenu had sent a representation to the Central

Government on 6-12-2001, that the same was received by the Central Government, but the same has not been disposed of, thereby preventing

the detenu in making effective representation with regard to the detention. On this ground, the petitioner has sought for quashing the order of

detention dated 27-11-2001.

Mr. I.Subramanian, learned Public Prosecutor appearing on behalf of the State, in order to sustain the order of detention, reiterated the grounds

for detention, and stated the various dates on which orders were passed by the authorities concerned, and also produced file relating to the

detention.

Mr. K.Rajendran, Standing counsel for Central Government, appearing on behalf of the Union of India, has also supported the stand taken by

the Public Prosecutor appearing for the State.

We have heard the arguments of both sides and perused the records including the file relating to the detention of the detenu produced by the

State.

The fact remains that the representation, dated 6-12-2001 sent by the detenu was received by the Central Government on 7-12-2001, and the

said representation was sent by the Central Government to the State Government requesting for English translation and for remarks with regard to

the allegations made in connection with the detention of the detenu on 7-12-2001, but the same was received by the State Government on 11-12-

2001. It is evident from the perusal of the file produced by the State that the State Government have called for remarks from the sponsoring

authority on 30-12-2001 itself. Thereafter, the State have called for remarks from the detaining authority who is none other than the Commissioner

of Police of Madras. Even though it is mentioned in the file that the remarks were called from the detaining authority on 30-12-2001, a perusal of

the file would disclose that the concerned official had signed calling for the remarks only on 2-1-2002. The communication was received by the

detaining authority on 12-1-2002 and sent for his remarks. The State Government have sent English translation of the representation along with the

remarks on 21-1-2002 after preparing the same on 18-1-2002. A perusal of the file would disclose that the said communication of the English

translation had been despatched only on 22-1-2002. The Central Government, after perusing the particulars and English translation sent by the

State, passed the orders on 28-1-2002 and rejected the representation on 28-1-2002 and communicated the same to the State Government by

fax on 30-1-2002. It is evident from the particulars mentioned above that the State Government, after receiving the remarks from the sponsoring

authority on 13-12-2001 has not taken any steps to call for remarks from the detaining authority till 2-1-2002. There is a delay of about 18 days in

dealing with the file. The above said delay could not be explained by the State. Such delay will not only affect the personal liberty as enshrined

under Article 22(5) of Constitution of India, but will also prevent the detenu from making effective representation to the authorities concerned to

have the detention order set aside. If the said circumstance is taken into consideration, the contention raised by the learned counsel for the

petitioner that the order of detention vitiates because of the unexplained delay of about 18 days has to be sustained.

In fine, the order of detention dated 27-11-2001 is set aside, thereby allowing the H.C.P. filed by the petitioner and the detenu is ordered to be set

at liberty forthwith if his presence is no longer required in any other case.