IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2011 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN H.C.P. No.2205 of 2010 Mrs.Malliga .. Petitioner W/o.Kabali Vs. 1.The State of Tamil Nadu Rep by its Secretary to Government Home, Prohibition and Excise XII Department St.George Fort Chennai 600 009 2.District Magistrate and District Collector Thiruvannamalai Thiruvannamalai District .. Respondents * * * Prayer : Petition under Article 226 of the Constitution of India, praying for issuance of Writ of Habeas Corpus directing the respondents to produce the body of the petitioner's husband Kabali S/o.Govindasamy, who is detained in the Central Prison, Vellore before this Hon'ble Court and pass an order to call for the records of the detention order imposed on the petitioner in detention order D.O.99/2010 C-2 dated 13.11.2010 passed by the second respondent and set aside the same. * * * For Petitioner :: Ms.L.Poompavai For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor O R D E R
M.SATHYANARYANAN, J.
The wife of the detenu is the Petitioner and challenge is made to the order of detention dated 13.11.2010, passed by the second respondent under which, the detenu has been branded as a Bootlegger and detained under the provisions of Tamil Nadu Act 14 of 1982.
2. As per the grounds of detention dated 13.11.2010, the detenu came to adverse notice in the following cases:-
1. Kalambur Police Station Crime No.85/2010, for the commission of the offence under Section 4(1)(aa) of TNP Act. The offence said to have taken place on 20.02.2010 at 18.30 hours.
2. Kalambur Police Station Crime No.112/2010, for the commission of the offence under Section 4(1)(aa) of TNP Act. The offence said to have taken place on 14.03.2010 at 21.00 hours.
3. Kalambur Police Station Crime No.116/2010, for the commission of the offence under Section 4(1)(aa) of TNP Act. The offence said to have taken place on 15.03.2010 at 18.40 hours.
4. Kalambur Police Station Crime No.118/2010, for the commission of the offences under Sections 4(1)(aa) r/w 4(1-A)(ii) TNP Act @ 4(1)(aa) of TNP Act. The offence said to have taken place on 16.03.2010 at 12.00 hours.
5. Kalambur Police Station Crime No.162/2010, for the commission of the offence under Section 4(1)(aa) r/w 4(1-A)(ii) TNP Act @ 4(1)(aa) of TNP Act. The offence said to have taken place on 24.04.2010 at 08.30 hours.
6. Kalambur Police Station Crime No.163/2010, for the commission of the offence under Section 4(1)(aa) r/w 4(1-A)(ii) TNP Act @ 4(1)(aa) of TNP Act. The offence said to have taken place on 24.04.2010 at 08.30 hours.
7. Cheyyar PEW Crime No.810/2010, for the commission of the offences under Section 4(1)(i) r/w 4(1-A)(ii) TNP Act @ 4(1)(i) of TNP Act. The offence said to have taken place on 29.08.2010 at 10.00 hours.
3. It is further stated in paragraph 3 of the grounds of detention that the detenu was also involved in the alleged commission of the offences, which said to have taken place on 25.09.2010 at 13.00 hours and in this regard an FIR was registered by Kalambur Police Station in Crime No.275/2010 under Sections 4(1)(i) read with 4(1-A)(ii) Tamil Nadu Prohibition Act, 1937. It was subsequently altered into under Section 4(1)(i), 4(1)(aaa) r/w 4(1-A)(ii) of Tamil Nadu Prohibition Act, 1937. The detenu was produced before the jurisdictional magistrate on 25.09.2010 and was remanded till 08.10.2010 and subsequently, the remand was extended up to 15.11.2010.
4. The Detaining Authority, on being satisfied with the materials placed before him by the Sponsoring Authority, has arrived at a subjective satisfaction that the activities of the detenu are prejudicial to the maintenance of public order and hence clamped the order of detention.
4. Ms.L.Poompavai, learned counsel appearing for the petitioner has drawn the attention of this court to paragraph No.5 of the grounds of detention and would submit that the Detaining Authority has placed reliance upon the orders granting bail in all the adverse cases and arrived at subjective satisfaction that in the ground case, there is a possibility of the detenu coming out on bail by filing bail application cannot be ruled out and hence clamped the order of detention. However, the copies of the bail orders relied upon by the Detaining Authority in the adverse cases have not been furnished to the detenu and therefore the detenu is prevented from making an effective representation for the revocation of the order of detention.
5. Per contra, Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, would submit that since the orders granting bail are known to the detenu and the Detainig Authority has arrived the subjective satisfaction based on the materials furnished to him by the sponsoring authority, there is no necessity on the part of the Detaining Authority to furnish those documents and prayed for dismissal of the Habeas Corpus Petition.
6. This court, after taking into consideration the rival submissions and perusal of the booklet, is of the view that the order of detention is vitiated for the following reasons:-
Admittedly, the Detaining Authority has placed reliance upon the orders granting bail in all adverse cases and those documents are relied upon documents. However, the fact remains that copies of those documents have not been furnished to the detenu. A perusal of the booklet would also disclose that even in the affidavit of the Sponsoring Authority, no reference as to the grant of bail in adverse cases to the detenu has been stated and it is not made clear as to where from the Detaining Authority has got those particulars and arrived at subjective satisfaction as to the real and imminent possibility of the detenu coming out on bail. In the considered opinion of this court, the above said infirmity would vitiate the order of detention and therefore the Order of Detention is liable to be set aside for the above said reasons.
8. In the result, the Habeas Corpus Petition is allowed and the order of detention passed by the second respondent in D.O.No.99/2010-C2 dated 13.11.2010 is quashed. The detenu Kabali, S/o.Govindasamy, is ordered to be set at liberty forthwith unless her detention/custody is required in connection with any other case or proceedings.
asr/-
To
1.The State of Tamil Nadu
Rep by its Secretary to Government
Home, Prohibition and Excise XII Department
St.George Fort
Chennai 600 009
2.District Magistrate and District Collector
Thiruvannamalai
Thiruvannamalai District
3.The Superintendent, Central Prison, Vellore
4. The Public Prosecutor, High Court,
Madras