BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE Ms.JUSTICE R.MALA Habeas Corpus Petition (MD) No.753 of 2008 Chandra .. Petitioner Vs. 1.State of Tamil Nadu, rep. by its Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai 600 009. 2.The District Collector & District Magistrate, Trichirapalli District, District. .. Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records relating to the Detention Order passed by the second respondent in Cr.M.P.No.33/2008 dated 14.08.2008 quash the same and direct the respondents to produce the body of the detenu Paulraj son of Soundarapandiyan @ Sundarapandi (now detained at Central Prison, Trichy) before this Corut and set him at liberty. !For Petitioner ... Mr.N.Anand Kumar ^For Respondents ... Mr.Daniel Manohar Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.CHOCKALINGAM,J)
In this writ application challenge is made to an order of the second
respondent made in Cr.M.P.No.33/2008 dated 14.08.2008 whereby husband of the
petitioner namely Paulraj was detained under the provisions of Dangerous
Activities of Boot-leggers, Drug offenders, Forest offenders, Goondas, Immoral
Traffic offenders, Sand offenders, Slum Grabbers and Video Pirates Act, 1982
(Tamil Nadu Act 14 of 1982) (hereinafter referred as the Act) terming him as a
‘Boot-legger’ as defined under the provisions of the Act.
2. The Court heard the learned counsel for the petitioner and also looked
into all the materials available in particular the order under challenge.
3. It is not in controversy that the detenu was involved in five adverse
cases namely Cr.No.58/2007 under Section 4(1)(aa) TNP Act, 1937 on the file of
Tiruverumbur PEW; Cr.No.450/2007 under Section 4(1)(aa) TNP Act, 1937 on the
file of Tiruverumbur PEW; Cr.No.19/2008 under Section 4(1)(aa) TNP Act 1937, on
the file of Samayapuram Police Station; Cr.No.228/2008 under Section 4(1)(aaa)
TNP Act, 1937 on the file of Tiruverumbur PEW; Cr.No.1170/2008 under Section
4(1)(a) r/w 4(1-A) 1937 on the file of Tiruverambur PEW and he was also involved
in one ground case in Cr.No.329/2008 under Section 4(1)(i), 4(1)(aaa) r/w 4(1-A)
TNP Act, 1937. He was found in possession of illicit arrack on 27.07.2008 at
16.00 hrs. Now, on scrutiny of the materials made available by the sponsoring
authority, the detaining authority recorded his subjective satisfaction that the
activities of the detenu were prejudicial to the maintenance of the Public order
and Public Health and he has to be termed as Boot-legger and accordingly made
the order which is the subject matter of challenge before this Court.
4. The order is assailed by the learned counsel for the petitioner on two
grounds. Firstly, as per the available materials, the ground case came to be
registered at 17.30 hrs by the said police station on 27.07.2008. In the arrest
card, the detenu was found to be in possession of illicit arrack at 16.00 hrs on
27.07.2008 and hence the arrest card should have have been prepared along with
the recovery mahazar only on that time namely 16.00 hrs. But, the crime number
is also found in the arrest card. Thus, it is doubtful whether the arrest card
and the preparation of the recovery mahazar are preponed as actually taken place
at 16.00 hrs as found therein and hence the detaining authority should have
called for a clarification. But, failed to do so.
5. Secondly, there was a delay in consideration of the representation. The
representation was made on 16.09.2008 and remarks were called for on 17.09.2008,
but the remarks were received only on 23.09.2008. Thus there was a delay of 5
days. Apart from that, the Honourable Minister for (PWD & Law) dealt with the
representation on 24.09.2008 and a rejection letter was prepared only on
03.10.2008. There was a delay of 8 days. Thus, there was two spells of delay. On
both the grounds, the order has got to be set aside.
6. The Court heard the learned Additional Public Prosecutor and paid its
anxious consideration on the submissions made.
7. As rightly pointed out by the learned counsel for the petitioner, in
the considered opinion of the Court, the order has got to be set aside on both
the grounds. So far as the ground case is concerned as per the materials
available it could be seen that the detenu was found to be in possession of
illicit arrack and was arrested at 16.00 hrs on 27.07.2008 and hence the arrest
card should have come into existence at that time but it contained the ground
case crime number. But according to the materials available, the case came to be
registered on 17.30 hrs. If to be so, the arrest card could not contain the
crime number. But, it contained. Therefore, a clarification should have been
called for by the detaining authority from the sponsoring authority. But, failed
to do so. Apart from this, as rightly pointed out by the learned counsel for the
petitioner, there was a delay in considering the representation. From the
proforma placed on record it could be seen that the representation was sent on
09.09.2008; representation received on 16.09.2008; remarks were called for on
17.09.2008 and the remarks were received only on 23.09.2008. There was 5 days
delay. The learned Additional Public Prosecutor would submit that there was two
intervening holidays. Thus there was remaining 3 days delay. The Honourable
Minister for (PWD & Law) dealt with the representation on 24.09.2008 and
rejection letter prepared only on 03.10.2008. There was 8 days delay. The
learned Additional Public Prosecutor would submit that there was four
intervening holidays. Thus there was remaining 4 days delay. The said two spells
of delay remain unexplained. The above said two grounds, in the considered
opinion of the Court would suffice to set aside the order under challenge.
Hence, this Court has to make the order undone by upsetting the same.
8. Accordingly, the Habeas Corpus Petition is allowed and the detention
order in Cr.M.P.No.33/2008 dated 14.08.2008 passed by the second respondent is
quashed. The detenu is directed to be set at liberty forthwith unless his
presence, in accordance with law, is required in connection with any other case.
jikr/sj
To:
1.The Secretary to Government,
The State of Tamilnadu,
Prohibition and Excise Department,
Fort St. George, Chennai 600 009.
2.The District Collector & District Magistrate,
Trichirapalli District, District.
3. The Superintendent of Central Prison, Tiruchirappalli.
4. The Joint Secretary to Government,
The State of Tamilnadu,
Public (law and order) Dept.,
Fort St. George, Chennai 600 009.
5. THE PUBLIC PROSECSUTOR
MADURAI BENCH OF MADRAS HIGH COURT MADURAI