IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06/09/2005
C O R A M
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
AND
THE HON'BLE MR.JUSTICE S.K.KRISHNAN
H.C.P. No.557 of 2005
Mr.Mohideen ..Petitioner
-Vs-
1. The Commissioner of Police,
Chennai City, Chennai-8.
2. The Secretary to Government,
Prohibition and Excise Department,
Government of Tamil Nadu,
Fort St.George, Chennai-9. ..Respondents
Petition filed under Article 226 of the Constitution of India praying
for the issuance of a Writ of Habeas Corpus as stated therein.
For Petitioner : M/s.Siraj and Siraj
For Respondents : Mr.V.M.R.Rajendran
Additional Public Prosecutor
:O R D E R
(ORDER OF THE COURT WAS MADE BY P.D.DINAKARAN, J.)
The petitioner has filed this Habeas Corpus Petition seeking to call
for the records relating to the order of detention in Memo No.184/
BDFGIS-V/2005, dated 28.04.2005, on the file of the first respondent and to
direct the respondents to produce the detenu Mr.Nazir, who is the niece of the
petitioner and son of Mr.Shahul Hameed, and confined in Central Prison,
Chennai before this Court and set him at liberty.
2. On 25.4.2005 at about 7.00 hrs. Thiru P.Asokan, Inspector of
Police, Law and Order, B1 North Beach Police Station received a reliable
information from his informant that pirated recently released film VCDs are
sold at Shop No.84-A, Burma Buzaar, Rajaji Salai, Chennai. The Inspector of
Police, after informing the Assistant Commissioner of Police, Harbour Range
and the 7th Metropolitan Magistrate, George Town, Chennai, proceeded to the
said shop along with his party, which he reached at 7.30 hrs. and served the
search memo to Thiru Nazir and noticed VCDs of recently released films and
obscene VCDs. As the said Nazir has no copy right, he was arrested at 7.35
hrs. and all the available VCDs and DVDs were seized. The Inspector of
police examined Thiru Nazir and recorded his voluntary confession statement.
In his confession, he has stated that with the help of his friend Thiru Thamim
Ansari, he used to prepare pirated VCDs in the computer unit at No.152 ,
Pattinathar Street, Perambur, Chennai and share the profits with him. Hence,
after giving search intimation to the learned Magistrate, the Inspector of
Police reached the spot at 09.45 hrs and arrested Thiru Thamim Ansari and
after serving search memo to him, conducted search at the said unit and seized
pirated VCDs, which were available there. The Inspector arrested the said
Thamim Ansari and returned to the police station. Thereafter, he registered a
case in Crime No.315/200 5 under Sections 51, 52(A) r/w.63, 68(A) of Copy
Right Act, 1957 and 292(a), IPC and 4(1) r/w.15(2) of TNEF Act and took up
investigation of the case and examined the witnesses and recorded their
statements. Later Tvl.Nazir and Thamim Ansari were produce d before the
learned VII Metropolitan Magistrate Court, George Town, Chennai and lodged at
Central Prison, Chennai as remand prisoners till 09.5.2005.
3. Taking note of the above case as ground case and on being
satisfied that Thiru Nazir committed offences under Chapter 16 of the
Copyright Act, 1957 and by selling VCDs of recent Tamil films in open market,
he has acted in a manner prejudicial to the maintenance of public order and as
such, branding him as a ‘Video Pirate’ as contemplated under Section 2(j) of
the Tamil Nadu Act 14 of 1982, the first respondent passed the order of
detention. Challenging the same, the above Habeas Corpus Petition has been
filed.
4. The learned counsel for the petitioner submitted that there is
delay in disposal of the representation and there is a discrepancy in
mentioning the crime number in the grounds of detention, which discloses
non-application of mind by the detaining authority and hence, seeks to quash
the order of detention.
5. Of course, as per the details furnished, there is no delay in
disposal of representation. However, it is not in dispute that there is no
adverse case against the petitioner and the only case the petitioner is facing
is registered in Crime No.315/2005 under Sections 51, 52 (A) r/w.63, 68(A) of
Copy Right Act, 1957 and 292(a), IPC and 4(1) r/w.15(2) TNEF Act. But in the
grounds of detention, in para 4, it is stated that the detenu Nazir is in
remand in B1 North Beach Police Station in Crime No.307/2005 and that he has
filed a bail application before the 7th Metropolitan Magistrate Court, George
Town, Chennai in Crl.M.P.No.3386/2005 and the same is pending. According to
the learned counsel, the said facts, viz., that the detenu is an accused in
Crime No.307/2005 and he has been remanded in the said case at the instance of
B1 North Beach Police Station and he has filed bail application before the VII
Metropolitan Magistrate, are totally incorrect. As rightly pointed out by the
learned counsel, the above discrepancy, which is apparent on the face of the
record, discloses the nonapplication of mind by the detaining authority.
Hence, the impugned order of detention is vitiated and the same is quashed.
The habeas corpus petition is allowed. The detenu is directed to be released
forthwith, unless he is required in connection with any other case.
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To
1. The Commissioner of Police,
Chennai City, Chennai-8.
2. The Secretary to Government,
Prohibition and Excise Department,
Government of Tamil Nadu,
Fort St.George, Chennai-9.
3. The Superintendent,
Central Prison,
Chennai.
4. The Public Prosecutor,
High Court, Madras.