IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.1.2008
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE P.R.SHIVA KUMAR
H.C.P.No.1703 of 2007
Sivagami .. Petitioner
Vs.
1. The State of Tamil Nadu
rep. by its Secretary to Government
Prohibition and Excise Department
Fort St.George, Chennai-600 009.
2. The District Collector and
District Magistrate
Villupuram District
Villupuram. .. Respondents
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Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein.
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For Petitioner : Mr.V.Parthiban
For Mr.K.Semmalai
For Respondents: Mr.N.R.Elango
Addl. Public Prosecutor
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O R D E R
(Made by P.D.DINAKARAN,J.)
The petitioner, wife of the detenu Selvam, who has been clamped with an order of detention by the second respondent, on arriving at the subjective satisfaction that the said detenu is a Bootlegger and has to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), seeks to call for the records relating to the order of detention dated 18.11.2007 made in Ref.No.C2/50392/2007, to quash the same and the produce the detenu, who is now confined in Central Prison, Cuddalore, before this Court and set him at liberty.
2.1. The order of detention dated 18.11.2007 was passed on the basis of ground case in Crime No.607 of 2007 for alleged commission of offences under Sections 4(1)(b), 4(1)(g), 4(1)(i), 4(1)(aaa) read with 4(1-A) of the Tamil Nadu Prohibition Act. On 23.10.2007, the Inspector of Police, Thiruvennainallur Police Station, along with his police party, conducted prohibition raid in a forest at the west side of Arungurukkai Village. At that time, the detenu was found pouring arrack in a big polythene bag and giving to a person nearby him and also receiving money. On seeing the police party, the said person who came to buy arrack escaped from that place. Hence, a case was registered and the detenu was arrested. The chemical analysis report of the samples taken from the arrack seized from the detenu disclosed that the arrack contained atropine of 3.18 mgms per 100 ml.
2.2. Apart from the above, the detaining authority also took note of four adverse cases pending against the detenu in Crime Nos.246/2006, 367/2006, 170/2007 and 378/2007 on the file of Thiruvennainallur Police Station for the offence under Sections 4(1-A), 4(1)(aaa), 4(1)(aa) and 4(1)(g) of the Tamil Nadu Prohibition Act and having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public health and public order, passed the impugned order.
3. Heard both sides. We have perused the materials produced before us.
4. The main contention put forth by the learned counsel for the petitioner is that the detaining authority, having stated that the detenu is in remand in connection with the ground case and the bail application moved by him is pending before the Principal District Sessions Court, Villupuram in Cr.M.P.No.12517 of 2007 and there is real possibility of his coming out on bail, had not arrived at subjective satisfaction with regard to the imminent possibility of the detenu coming out on bail in connection with the second and third adverse case and therefore, the same vitiates the impugned order of detention on the ground of non application of mind by the detaining authority.
5. Concededly, in the order of detention, the detaining authority has observed that the detenu is in remand in connection with the ground case and the bail application moved in Cr.M.P.No.12517 of 2007 before the Principal and District Sessions Court, Villupuram is pending, and there is likelihood of his coming out on bail. However, the detaining authority, while dealing with the imminent possibility of the detenu coming out on bail, had chosen to refer only to the ground case, but not the second and third adverse case, in which, admittedly, the detenu was in remand.
6. We are, therefore, satisfied that there is total non application of mind on the part of the detaining authority while passing the impugned order of detention. Accordingly, the impugned order of detention is vitiated and the same is quashed. This petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other crime. No costs.
kpl
To
1. The Secretary to Government
Prohibition and Excise Department
Fort St.George, Chennai-9.
2. The District Collector and
District Magistrate
Villupuram District
Villupuram.
3. The Superintendent
Central Prison
Cuddalore.
4. The Public Prosecutor
High Court,
Madras.