IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.118 OF 2008 Aruvancham .. Petitioner Vs. 1.State of Tamil Nadu, rep. by the Secretary, Prohibition and Excise Department, Fort St. George, Chennai-600 009. 2.The District Magistrate and the District Collector, Villupuram District. .. Respondents This habeas corpus petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of habeas corpus calling for the records relating to the Detention Order No.C2/2395/2008, dated 19.01.2008 passed by the second respondent under Tamil Nadu Act 14/1982 and to quash the same and to direct the respondents to produce the detenu Ayyasamy, son of Singaram, now confirmed at Central Prison, Cuddalore before the court and set him at liberty. For Petitioner : Mr.S.Vadivel Murugan For Respondents: Mr.M.Babu Muthu Meeran, APP - - - - ORDER
(The order of the Court was made by M.CHOCKALINGAM, J.)
The petitioner challenges the order of the second respondent, dated 19.01.2008 made in No.C2/2395/2008, whereby an order of detention was passed under Tamil Nadu Act 14 of 1982, terming the detenu Ayyasamy, as Bootlegger.
2.The affidavit filed in support of the petition and the order under challenge are perused. The Court heard the learned counsel on either side.
3.Concededly, the second respondent Detaining Authority has passed the order under challenge on 19.01.2008, terming the detenu as Bootlegger, after arriving at subjective satisfaction on the materials placed by the Sponsoring Authority in respect of 4 adverse cases in Crime No.356 of 2007 registered by Kallakurichi Police Station, Crime Nos.1561/2007, 1626/2007 and 1751/2007 registered by Kallakurichi Prohibition Enforcement Wing and also a ground case in Crime No.2131 of 2007, since in the opinion of the Detaining Authority, the activities of the detenu were prejudicial to the maintenance of public order and health and further, in order to prevent the detenu from indulging in such activities in future, the said order has got to be passed. The said order is the subject matter of challenge before this court.
4.Assailing the order under challenge, the learned counsel for the petitioner would submit that there was a thorough non application of mind on the part of the detaining authority; that the detenu was arrested in the ground case registered under the Tamil Nadu Prohibition Act in Crime No.2131 of 2007 as per the arrest memo on 28.12.2007 at about 15.15 hours; that the case came to be registered in Crime No.2131 of 2007 at about 19.00 hours; that the arrest was actually made at 15.15 hours and hence no question of putting the crime number in the arrest memo would arise, but it has been done so and hence the Detaining Authority, after scrutinizing the materials, should have asked for clarification, but he has failed to do so.
5.The learned counsel would further submit that as could be seen in page 97 of the booklet, the report of the chemical Analysis was made available, where three bottles of samples were placed for analysis; that the Authority has also pointed out that each contained 2.89% only, but nowhere the report would state that it contained poisonous substance Atropine; and that so long as it was not stated, the certificate itself was incomplete and it could not be inferred. Further, as could be seen from the order under challenge, in paragraph 5, the detenu was transferred from Sub Jail, Kallakurichi to Central Prison, Cuddalore; that if to be so, there should have been proceedings of such transfer of detenu, but the detaining authority has not called for the said proceedings. Further, the detenu has called for translated version of pages 5,15,16,28,29,30,63 and 94 of the booklet, enabling him to understand the contents of those documents, but it was not given to him till date. Further, the learned counsel would refer page 95 of the booklet and it was a requisition given by the police officer. At the outset, it was mentioned that it was only one bottle with sample, but at the bottom, it was mentioned that there were three bottles with samples. Apart from that, the report of the analysis as found in page 97 of the booklet would refer three bottles. Under these circumstances, this would clearly indicate the discrepancies whether it was one bottle or three bottles, but the Detaining Authority has not called for any explanation or clarification and thus, this would indicate the non application of mind and therefore, the detention order has got to be quashed.
6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
7.It is not in controversy that the order under challenge came to be passed on 19.01.2008, terming the detenu as Bootlegger on the strength of 4 adverse cases and one ground case as detailed in the order. The ground case is shown as Crime No.2131 of 2007. As per the arrest memo, as rightly pointed out by the learned counsel for the petitioner, the detenu was arrested on 15.15 hours along with the illicit arrack, which was seized from the detenu, but a case came to be registered at 19.00 hours. If to be so, the arrest memo, which was done earlier at the scene of occurrence, could not have contained the crime number. But the arrest memo and the seizure mahazar all contained the crime No.2131 of 2007. Hence a necessity arose to call for clarification from the Sponsoring Authority, but the Detaining Authority has failed to do so. Apart from that, the chemical analysis report as found in page 97 of the booklet would point out all particulars and would state that 2.89%, but nowhere in the marginal note it is stated that it contains that it was Atropine and the certificate of analysis was incomplete.
8.Further, it could be seen that the translated version of documents were asked for by way of representation, but till this time, as rightly pointed out by the learned counsel for the petitioner, they were not supplied. In order to understand those documents for making effective representation, a requisition for translated copies was made, but it has not been supplied. Hence no effective representation was made. Further, as could be found in page 95 of the booklet, there was a requisition made. At the opening of the requisition, only one bottle with sample has been referred to, but at the end, it was mentioned that there were three bottles. But the analysis report would refer to three bottles with samples. The question as to how such discrepancies came in the requisition made by the Sponsoring Authority, was to be answered by the Sponsoring Authority and a clarification should have been called for by
M.CHOCKALINGAM, J.
AND
S.PALANIVELU, J.
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the Detaining Authority, but he failed to do so, which in the opinion of the court is the non application mind. Hence the order of detention has got to be set aside.
9.Accordingly, the detention order is set aside. The Habeas corpus petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
(M.C., J.) (S.P.V., J.)
18.06.2008
Index : Yes
Internet : Yes
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To
1.The Secretary,
State of Tamil Nadu,
Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2.The District Magistrate and
the District Collector,
Villupuram District.
3.The Additional Public Prosecutor,
High Court,
Madras.
H.C.P.NO.118 OF 2008