In the High Court of Judicature at Madras
Dated: 13/06/2006
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice V.DHANAPALAN
Habeas Corpus Petition No.140 of 2006
Prabha .. Petitioner
vs.
1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Prohibition and Excise Department,
Fort St. George, Chennai-9.
2.The Commissioner of Police,
Greater Chennai,
Egmore, Chennai-8. .. Respondents
L.......T.......T.......T.......T.......T.......T.......T.......T.......T....J
Petition filed under Article 226 of the Constitution of India praying
for issuance of writ of habeas corpus to call for the records relating to the
detention order passed by the second respondent in No.559/2005 dated
23.12.2005, quash the same and direct the respondents to produce the body of
the detenu Sivaraj, son of Vadivel, now detained at Central Prison, Chennai
before this Court and set him at liberty.
!For petitioner : Mr.S.Doraisamy for Mr.V.Elangovan
^For respondents : Mr.M.Babu Muthu Meeran, Addl. Public Prosecutor
:ORDER
(Order of the Court was made by P. SATHASIVAM,J.,)
The petitioner, who is the wife of the detenu by name Sivaraj, who was
detained as a “Bootlegger” as contemplated under Section 3 (1) of the Tamil
Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (in
short “Tamil Nadu Act 14 of 1982”) by the impugned order of detention dated
23.12.2005, challenges the same in this petition.
2. Heard both sides.
3. At the foremost, the learned counsel for the petitioner by drawing our
attention to the reference made in paragraph 3 of the grounds of detention
viz., after destroying the remaining I.D arrack and fermented wash a
“certificate” was prepared to that effect, submitted that no such certificate
was prepared as per Section 32 of the Tamil Nadu Prohibition Act, 1937 and the
only document available is destruction mahazar, which finds place at page 56
of the paper book supplied to the detenu. According to him, in the absence of
the certificate as stated in paragraph 3 of the detention order, it is
presumed that the detaining authority has not applied his mind while passing
the detention order. He has also heavily relied on the decision of this Court
dated 25.09.2003 in HCP No.2580 of 2002. In that case, before the Division
bench, a similar contention was raised. A perusal of the details mentioned in
the said decision shows that in that case also the destruction mahazar alone
was prepared and a copy was supplied to the detenu. However, as in the
present case, the detaining authority therein referred to the said document as
a certificate prepared under Section 32 of The Tamil Nadu Prohibition Act,
1937. The Division Bench after finding that the document available in the
paper book does not amount to certificate in terms of Section 32 of The Tamil
Nadu Prohibition Act, 1937 and after holding that the detaining authority has
not applied his mind, quashed the detention order.
4. On going through the factual details in our case, particularly the
reference made in para 3 as well as the document available at page 56 of the
paper book, we are of the view that the decision relied on by the learned
counsel for the petitioner is directly applicable to the case on hand.
Inasmuch as the detaining authority has referred the destruction mahazar as a
certificate in terms of Section 32 of The Tamil Nadu Prohibition Act, 1937, we
are satisfied that the detaining authority has not properly applied his mind
and on that ground the impugned detention order is liable to be quashed and
accordingly, the same is quashed.
5. The Habeas Corpus Petition is allowed and the impugned order of detention
is set aside. The detenu is directed to be set at liberty forthwith from the
custody unless he is required in some other case or cause.
raa
To
1.The Commissioner of Police, Greater Chennai, Egmore, Chennai-8.
2. The Secretary to Government,State of Tamil Nadu, Prohibition and Excise
Department, Fort St. George, Chennai.
3. The Superintendent, Central Prison, Chennai. (In duplicate for
communication to detenu)
4. The Joint Secretary to Government, Public (Law and Order) Fort St.
George, Chennai-9.
5. The Public Prosecutor, High Court, Madras.