BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/02/2005 CORAM: THE HONOURABLE MR.JUSTICE P.D. DINAKARAN AND THE HONURABLE MR.JUSTICE S. ASHOK KUMAR HCP (MD)No.144 of 2004 In the matter of detention of one Vellaisamy, Son of Palaniyandi, under T.N.Act 14 of 1982 branding him as a 'Bootlegger'. Saroja, W/o.Vellaichamy ... Petitioner vs. 1.The State of Tamil Nadu, rep.by the Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The District Collector, Trichy, Trichy District. ... Respondents Petition under Article 226 of the Constitution of India praying for issuance of writ of habeas corpus calling for the records pertaining to the order of detention made by the second respondent in Crl.M.P.No.84 of 2004, dated 11.12.2004, quash the same and consequently to set the detenu Vellaichamy at liberty. !For Petitioner ... Mr.N.Anandakumar ^For Respondents ... Mr.K.Chellapandian, Additional Public Prosecutor. :ORDER
(Order of the Court was made by P.D.DINAKARAN, J)
The challenge in this habeas corpus petition is to the order of
detention, dated 11.12.2004, passed by the second respondent against one
Vellaichamy (hereinafter referred as “the detenu”), branding him as a
“Bootlegger” and directing preventive detention under Section 3(1) of the Tamil
Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates
Act, 1982 (Tamil Nadu Act 14 of 1982) read with the orders issued by the
Government in G.O.(D)No.275, Prohibition and Excise (XVI) Department, dated 18th
October 2004 under sub-section (2) of Section 3 of the said Act. The
petitioner is the wife of the detenu.
2.Learned counsel for the petitioner would submit that a pre-
detention representation, dated 23.11.2004, was sent by the petitioner to the
detaining authority making several allegations against the sponsoring authority,
but the same was not considered by the detaining authority and if at all the
same has been considered and disposed of, it might have been mentioned in the
grounds of detention, but there is no mention about the same and, therefore, on
this ground, the order of detention is liable to be quashed.
3.We have heard the learned Additional Public Prosecutor on the
above aspect and also perused the material available on record.
4.The specific contention of the learned counsel for the petitioner
is that even though the petitioner had made a pre-detention representation on
23.11.2004, the same was not considered and disposed of by the detaining
authority before passing the detention order. The respondents in their counter
affidavit have stated that the pre-detention representation, dated 24.11.2004,
was, in fact, duly considered, but rejected before passing the detention order.
Concededly, even assuming that it was considered and rejected, the same is not
available either in the book-let supplied to the detenu nor a mention is made
about this in the grounds of detention and, in our considered view, this
vitiates the impugned order of detention. This view stands supported by an
earlier decision of the Apex Court in DISTRICT MAGISTRATE V. R. KUMARAVEL,
reported in 1994 SCC (Crl.) 229, a Division Bench decision of this Court in SYED
ALI, T.M. V. STATE OF TAMIL NADU, reported in 1999(2) CTC 490, which have been
followed in the decision rendered in HCP No.1965 of 2000, decided on 23.01.2001,
in which one of us (P.D.DINAKARAN,J) is a party.
5.For the said reason, this habeas corpus petition is allowed and
the impugned order of detention, dated 11.12.2004, in Crl.M.P.No.84/2004, passed
by the second respondent, is quashed. The detenu is directed to be set at
liberty forthwith, unless his presence is required in connection with in any
other case.
To:
1.The Secretary to Government,
Prohibition and Excise Department,
Fort St.George, Chennai-600 009.
2.The District Collector and
District Magistrate,
Trichy District, Trichy.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4. The Superintendent,
Central Prison, Tiruchirapalli.
5. The Joint Secretary to Government,
Public (Law & Order) Department,
Fort St. George, Chennai- 9.
