IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.06.2008
CORAM:
THE HON'BLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE S.PALANIVELU
HCP.NO.69 OF 2008
Padhinettam Padiyaan ...Petitioner
Vs.
1.State represented by the
Secretary to Government
Home,Prohibition and Excise Department,
Fort St.George,
Chennai 600 009.
2. The District Collector and District Magistrate,
Nagapattinam District @,
Nagapattinam ..Respondents
Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records of the second respondent pertaining to the order made in C.O.C.No.02/2008 dated 8.1.2008 in detaining the detenu under the Tamil Nadu At 14 of 1982, as a Bootegger and quash the same and direct the respondents to produce the detenue, namely, Malar, wife of Maharajan, who is detained at the Special Prison for Women, Central Prison Campus, Tiruchirappalli, before this Court and set him at liberty.
For petitioner : Mr.O.S.Thilak Pasumbadiar
For Respondents : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
---
O R D E R
(Order of the Court was made by M.CHOCKALINGAM,J)
Challenge is made to the order of the second respondent dated 08.01.2008 made in C.O.C.No.02/2008 , whereby the detenue Malar was termed as Bootlegger as defined under the Tamil Nadu Act 14 of 1982.
2. Affidavit in support of the petition is perused. Heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor and also the order under challenge is perused.
3. Admittedly, on the strength of the recommendations made by the sponsoring authority that the detenue Malar was involved in five adverse cases viz.,(1) Crime No.176/2007 (2) Crime No.356/2007 (3) Crime No.476 of 2007 of Velippalayam Police Station (4) Crime No.1801 of 2007 of Nagapattinam P.E.W. and (5) Crime No.637 of 2007 of Velipplayam Police Station registered for the offences under the Tamil Nadu Prohibition Act and one ground case in Crime No.660 of 2007 of Vellipalayam was also registered under the Tamil Nadu Prohibition Act, the detaining authority after scrutiny of the materials available, has recorded a finding that the activities of the detenue Malar were prejudicial to the maintenance of the public order and peace she was termed as Bootlegger and in order to prevent her from indulging in such activities in future, a necessity arose in passing the order of detention under Act 14 of 1982 and accordingly made the order, which is under challenge in this petition.
4. Advancing his arguments in support of the petition, the learned counsel for the petitioner would submit that the order of detention came to be passed on 08.01.2008. Though a pre-detention representation was sent on 26.12.2007 itself by the brother of the detenue, neither the pre-detention representation was placed before the detaining authority before passing the order nor it was considered by him. Apart from that, the representation was also not placed before the Advisory Board before getting the approval. Under such circumstances, the detention order is vitiated. Learned counsel for the petitioner would further add that the detaining authority has pointed out that “a bail petition filed before the Court of Sessions, Nagapattinam in Crl.M.P.No.75 of 2008 on 4.1.2008 was dismissed and a bail application was moved before this Court in Crl.O.P.No.416 of 2008 and it is pending, but the authority has pointed out that there is a real possibility of her coming out on bail by filing another bail application before the High Court or the Supreme Court for the above case, since in similar cases, bail orders are granted by the High Court or the Apex Court after lapse of time. According to the learned counsel for the petitioner, this is nothing, but non-application of mind on the part of the authority. Once the application filed by the detenue is pending before the High Court, there was no necessity for filing another application, even before the orders are made. This would clearly indicate the non-application of mind on the part of the authority. Learned counsel for the petitioner would further add that in the detention order, nowhere the authority has referred to whom the representation must be made. Under such circumstances, the detenue is prevented from making a representation in time and that itself caused prejudice to her. Under such circumstances, the order has got to be set aside.
5. The Court heard the learned Additional Public prosecutor on the above contentions.
6. The Court paid its anxious consideration on the submissions made. It is not in controversy that the detention order came to be passed on 8.1.2008 on the strength of the materials placed by the Sponsoring authority in respect of five adverse cases and one ground case referred to above. The detaining authority took the view that it was a fit case where the provisions of Act 14 of 1982 can be invoked, since the detenue was a bootlegger and her activities, in the opinion of the authority, are prejudicial to the public order and health. The pre-detention representation was made according to the counsel on 26 .12.2007, even before the order under challenge came to be passed on 8.1.2008. Learned counsel for the State would deny that no such representation was made at all, but a copy of the representation and the acknowledgment for receipt of the representation were placed before this Court and they were perused. As could be seen, the pre-detention representation was made on 26.12.2007 and it was also received by the authority on 28.12.2007, but nowhere the said representation was made on 26.12.2007 or orders were made thereon, were referred to in the order under challenge. Hence, it would be quite clear that such a representation was not considered, whereas, the State comes out with the reply that no such representation was made or received and hence it would be quite clear that the representation could not have been placed before the Advisory Board. All would go to show that even the pre-detention representation which the law would mandate to consider before passing the order under challenge, was not considered at all which in the opinion of this Court would suffice to set aside the order.
7. Further, the statement made by the detaining authority in the course of the detention order that “the bail application filed before the Court of Sessions, Nagapattinam was dismissed and thereafter an application was also made in Crl.O.P.No.416 of 2008 before the High Court and there is a real possibility of her coming out on bail by filing another application before the High Court or the Supreme Court” would clearly indicate that merely a statement was made by the authority to pass such an order of detention. While the bail application was pending and without knowing the result of the bail application, the authority cannot state that there is real possibility of her coming out on bail by filing another application before the High Court or Supreme Court after lapse of time. Hence, it would be clearly indicative of the fact that it is non application of mind on the part of the authority. Therefore, the grounds stated above would be suffice to set aside the detention order. Accordingly, the order of detention is quashed.
8. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in C.O.C.No.02/2008 dated 08.01.2008, The detenu, namely, Malar, who is now confined at Special Prison for Women at Central Prison Campus, Tiruchirappalli is directed to be set at liberty forthwith unless her presence is required in connection with any other case.
(M.C.,J.) (S.P.V.,J.)
24-6-2008
Index: yes/no
Internet: yes/no
vjy
To:
1.The Secretary to Government
Home,Prohibition and Excise Department,
Fort St.George,
Chennai 600 009.
2. The District Collector and District Magistrate,
Nagapattinam District @,
Nagapattinam
M.CHOCKALINGAM,J
AND
S.PALANIVELU,J
vjy
HCP.NO.69 OF 2008
24.06.2008