IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/07/2004
CORAM
THE HON'BLE MR. JUSTICE V. KANAGARAJ
and
THE HON'BLE MR. JUSTICE S. ASHOK KUMAR
Habeas Corpus Petition No.438 of 2004
Mrs.Kasthuri .. Petitioner
-VS-
1. State, rep. by its
Secretary to Government,
Prohibition & Excise
Department,
For St. George,
Chennai - 9.
2. The District Magistrate,
and District Collector,
Kancheepuram District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for the relief as stated therein.
For petitioner : No appearance
For respondents : Mr. Abudu Kumar Rajarathinam
Government Advocate (Crl. side)
:O R D E R
(Order of the Court was delivered by V. KANAGARAJ,J.)
The detenue is the petitioner herein and she has come forward
to file the above petition praying to issue a Writ of Habeas Corpus, calling
for the records relating to the order in B.D.F.G.I.No.05/2004 dated 5.2.2004
passed by the second respondent herein, quash the same as illegal and further
direct the respondents to produce the body of the petitioner/detenue
viz.,Tmt.Kasthuri W/o Venugopal who is now confined in the Special Prison for
Women, Vellore, before this Court and set her at liberty forthwith.
2. The detenue has been detained on the ground that she was a
Bootlegger under the relevant provisions of Tamil Nadu Act 14 of 1982.
3. Heard Mr. Abudu Kumar Rajarathinam, learned government
advocate on the criminal side with no representation made on the part of the
petitioner.
4. On a perusal of the records, it comes to be known that the
second respondent has passed the order of detention as against the detenue
branding her as a Boot-Legger on account of the threat caused by her to the
public order. It further comes to be known that already 10 cases have been
registered as adverse cases against the detenue, of which, one is a case under
Section 4(1)(aaa) R/w Section 4(1-A) of T. N.P.Act 1937.
5. It further comes to be seen from the order of detention
passed by the detaining authority, this Court is able to come across one
serious anomaly viz., non-application of mind on the part of the detaining
authority exhibited on the part of the sponsoring authority.
6. So far as the point regarding non-application of mind on
the part of the detaining authority is concerned, in para.5(i) of the grounds
of detention, it is stated by the detaining authority that there is an
imminent possibility of the the detenue coming out on bail for the offences
under Section 4(1)(aaa) r/w 4(1-A) TNP Act, 1937 by filing bail applications
before the Court, which shows that there is non-application of mind on the
part of the detaining authority in stating that there is imminent possibility
of her coming out on bail. Therefore, there is no material on record to show
that the detaining authority has independently applied his mind without taking
into consideration the statement of the sponsoring authority, and hence, the
order of detention gets vitiated.
7. This Court’s attention is also drawn to a decision of the
Apex Court rendered in Rivadeneyta Ricardo Agustin v. Govt. of Delhi
reported in 1994 SCC (Cri) 354, wherein it is held therein:
“7. ….
8. The above statement merely speaks of a “possibility” of the detenu’s
release in case he moves a bail petition. It neither says that such release
was likely or that it was imminent. Evidently, the statement falls short of
the requirement enunciated by this Court in Kamarunnissa.
11. In these circumstances, we must hold that the principle enunciated by
this Court in Kamarunnissa v. Union of India squarely applies and the order
is liable to be quashed. It is accordingly quashed.”
Falling in line with the above decision of the Apex Court, since the present
case is on similar set of facts and circumstances, this Court has to pass its
order in the following manner :-
In result,
(i) the above Habeas Corpus Petition is allowed;
(ii) the detention order dated 5.2.2004 made in
B.D.F.G.I.S.No.05/2 004 by the second respondent herein is quashed;
(iii) the detenue, viz.,Tmt.Kasthuri W/o Venugopal is directed
to be set at liberty forthwith unless his detention is required in any other
case.
Index:Yes
Internet:Yes.
Gr.
To
1. The Secretary to Government of Tamil Nadu,
Prohibition & Excise Department,
Fort St. George, Chennai – 9.
2. The District Magistrate and District Collector,
Kancheepuram District.
3. The Superintendent, Special Prison for Women, Vellore.
4. The Joint Secretary to Government, Public (Law & Order),
Fort St.George, Chennai-9.
5. The Public Prosecutor, High court, Madras.