IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.64 of 2008 P.Kulanthaivel .. Petitioner vs 1.The District Collector and District Magistrate Villupuram District, Villupuram 2.The State rep. By its Secretary to Government, Home, Prohibition and Excise Department Fort St. George, Chennai 600 009. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records in No.C2/52660/2007 dated 4.12.2007 on the file of the first respondent herein and quash the same as illegal and direct the respondents to produce the detenu Subbudu alias Subramani, son of Kuppusamy alias Chinnathambi now confined in Central Prison, Cuddalore, before this Court and set him at liberty. For Petitioner : Mr.N.Duraisamy For Respondents : Mr.M.Babu Muthu Meeran Additional Public Prosecutor ORDER
(Order of the Court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to an order of the first respondent, the District Collector and District Magistrate, Villupuram, made in No.C2/52660/2007 dated 4.12.2007, whereby he passed an order of detention under Act 14/82 of one Subbudu on the recommendations made and termed him as a bootlegger.
2.The affidavit in support of the petition is perused. The Court looked into the grounds on which he was detained, and also the order under challenge. The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor for the State.
3.Concededly, the first respondent made the order under challenge on the recommendations of the sponsoring authority, who placed the particulars of five adverse cases in Kallakurichi Prohibition Enforcement Wing Cr.Nos.716/2005 and 890 of 2006, Kariyalur PS Cr.Nos.133/2006 and 48/2007 and Kallakurichi Prohibition Enforcement Wing Cr.No.1862/2007 and of one ground case in Kallakurichi Prohibition Enforcement Wing Cr.No.1888/2007 registered on 19.11.2007, and recorded that Subbudu was to be termed as a bootlegger in view of his activities which, in the opinion of the authority, were prejudicial to the maintenance of public order and peace, and also in order to prevent him from indulging in such further activities, he should be detained under Act 14/82 and hence, he passed the order which is the subject matter of challenge before this Court.
4.The learned Counsel for the petitioner, Mr.N.Duraisamy, in his sincere attempt of assailing the order, made the following submissions:
(a) A case was registered by Kallakurichi Prohibition Enforcement Wing in Crime No.1888 of 2007 for an incident that took place on 19.11.2007. As could be seen from the FIR, the occurrence has taken place at about 10.30 a.m., and he was arrested at about 10.45 a.m. But, when the materials were placed by the sponsoring authority before the detaining authority, the time of arrest was found to be thoroughly different in all the records. The arrest card would reveal that it was at about 10.15 a.m. on 19.11.2007, while the confessional statement alleged to have been recorded from the accused, would show that the arrest was made at about 11.30 a.m. Further page 53 of the Tamil translation would reveal that it was at about 10.15 a.m. All would cast a doubt at what time he was actually arrested.
5.Added further the learned Counsel that page 52 of the Tamil translation, wherein the offences and the crime number were to be mentioned, refers only to Crime No.1888/2007, but did not speak about the offence, which was allegedly committed by him; that further as regards Column 11 as to the question whether he was sent to the hospital for treatment, there was an answer in the affirmative; but, he was actually not sent so; that as far as the bail application is concerned, the sponsoring authority has made a report stating that the bail application was filed by him before the Court of Session; but, it did not refer to any date at all; that the report would refer to one ground case and one adverse case; that actually the order under challenge would refer to five adverse cases and one ground case, and thus, it would be quite clear that all other materials in respect of other cases were placed which were not originally referred to in the report in respect of which clarification should have been called for by the authority, but not done so; that the failure on the part of the authority would indicate the non-application of mind, and hence, it has got to be set aside.
6.The Court heard the learned Additional Public Prosecutor on all the above contentions.
7.After doing so and scrutinising the materials available, this Court is of the considered opinion that the order has got to be quashed. It is not in controversy that on the strength of the recommendation made by the sponsoring authority, the detaining authority has passed the order on 4.12.2007, terming the detenu as a bootlegger, and five adverse cases and one ground case were mentioned therein. The ground case relates to Crime No.1888/2007 in which the occurrence has taken place on 19.11.2007. According to the FIR, the occurrence has taken place at about 10.30 a.m. and he was arrested at about 10.45 a.m. But, the arrest time is found in the arrest card as 10.15 a.m. In the confessional statement, it is found as 11.30 a.m. Further, the Tamil version would show the same as 10.15 a.m. All would cast a doubt at what time he was arrested.
8.As rightly pointed out by the learned Counsel for the petitioner, the authority was to make mention of the offence in the arrest card; but, he did not mention so. Only the crime No.1888/2007 is mentioned, and it was stated as if he was sent for the medical examination.
9.Added circumstance was the report given by the sponsoring authority which would refer only to two cases viz. one adverse case and one ground case; but, the detaining authority has referred to five adverse cases in the order. That would clearly cast a doubt how these particulars in respect of the material records are furnished. The four other adverse cases were also placed while they were not referred to in the report given by the sponsoring authority. Under the circumstances, one would naturally expect the detaining authority to call for a clarification or explanation in that regard, but has miserably failed. The failure to do on the part of the detaining authority would no doubt indicate that he has not scrutinised the records properly, but has passed the order mechanically. The failure on the part of the detaining authority would clearly be indicative of the non-application of mind which, in the opinion of the Court, would suffice to set aside the order.
10.Accordingly, this habeas corpus petition is allowed setting aside the order of the first respondent. The detenu is directed to be released forthwith unless his presence is
M.CHOCKALINGAM, J.
AND
S.PALANIVELU, J.
nsv/
required in connection with any other case.
(M.C.,J.) (S.P.V.,J.)
18-6-2008
Index: yes
Internet: yes
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To:
1.The District Collector and
District Magistrate
Villupuram District,
Villupuram
2.The Secretary to Government,
Home, Prohibition and
Excise Department
Fort St. George,
Chennai 600 009.
3.The Public Prosecutor
High Court, Madras.
HCP No.64 of 2008