IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.105 OF 2008 Valarmathi .. Petitioner Vs. 1.State represented by The Secretary to Government, Home, Prohibition & Excise Department, Fort St.George, Chennai – 600 009. 2.The District Collector & District Magistrate, Tiruvarur District @ Tiruvarur. .. Respondents This Habeas Corpus petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of habeas corpus to call for the records of the second respondent pertaining to the order made in C.O.C.No.04/2008 dated 20.1.2008 in detaining the detenu under the Tamil Nadu Act 14 of 1982, as a Bootlegger and quash the same and direct the respondents to produce the detenu, namely, Boominathan, son of Ramaiyan, before this Court and set him at liberty. For Petitioner : Mr.O.S.Thilak Pasumbadiar For Respondents: Mr.Babu Muthu Meeran, APP ORDER (The order of the Court was made by M.CHOCKALINGAM, J.) The petitioner has challenged the order of detention made by the second respondent dated 20.1.2008 in C.O.C.No.04/2008 under Tamil Nadu Act 14 of 1982 whereby the petitioner's husband Boominathan was termed as Bootlegger. 2. The affidavit filed in support of the petition is perused. The Court heard the learned counsel for the petitioner and also made a scrutiny of the order under challenge. The court heard the learned counsel for the respondents on the contentions. https://hcservices.ecourts.gov.in/hcservices/ 3. On a perusal of the available materials, it could be seen that on the strength of the recommendation made by the sponsoring authority and also the materials made available in respect of two adverse cases which were registered in Tiruthuraipoondi Prohibition Enforcement Wing in Crime No. 12 of 2002 for the offence under Section 4(1)(g) of T.N.P. Act and Crime No.135/2002 for the offence under Section 4(1)(a) of T.N.P. Act and also on the strength of the ground case registered in Edaiyur Police Station in crime No.127 of 2007 for the offence under Sections 4(1)(i), 4(1)(aaa) r/w 4(1-A) of T.N.P. Act and the other materials placed, the detaining authority has arrived at subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public health and order and hence, he has termed the detenu as Bootlegger and also in order to prevent him from indulging in such activities in future, he has detained him under the Tamil Nadu Act 14 of 1982. Therefore, he has passed an order of detention, which is the subject matter of challenge before this Court. 4. Advancing arguments on behalf of the petitioner, the learned counsel submits that a representation was made by the petitioner on 30.1.2008. The order of detention came to be passed on 20.1.2008. Though the said representation was acknowledged by the detaining authority it was neither considered nor placed before the Advisory Board before approval of the order. Under such circumstances, the order has become infirmity. Learned counsel took the Court to paragraph 8 of the order under challenge wherein it is found that "Hence he comes under 'A' Category arrack seller as reported n C.No.28/Camp/IGP/Enforcement/95 dated 22-2-2005." When a translated version was given to the detenu, this particular part was not actually found. Thus, the detenu was kept under darkness in respect of that part and he could not make effective representation. Hence, it is violative of legal mandate. Added further learned counsel, an enquiry was conducted by the R.D.O. and he has also given a report and it was relied on by the detaining authority but the said report was not served on the detenu to make effective representation in that regard. Hence, the order of detention has got to be set aside. 5.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submission made on either side. 6. It is not in controversy that the order under challenge came to be passed by the Detaining Authority on 20.1.2008. The detenu is the husband of the petitioner and the detenu was termed as Bootlegger on the strength of the recommendation made by the Sponsoring Authority. As could be seen from the order under challenge there was two adverse cases and one ground case registered under the Tamil Nadu Prohibition Act. According to the learned counsel for the petitioner, a representation along with acknowledgement card was sent on 30.1.2008 but no order has been passed on the same. According to the respondent side, no such representation was received. At this juncture, the learned counsel for the petitioner placed before this https://hcservices.ecourts.gov.in/hcservices/ Court the acknowledgement card along with the copy of the representation dated 30.1.2008. A perusal of the same would show that the representation dated 30.1.2008 was received and acknowledged by the detaining authority. Under such circumstances, the representation should have been considered by the State but has not done so. If the representation should have been placed before the Advisory Board for approval, the Advisory Board should have considered the same but it does not have the occasion to consider the representation made by the petitioner. Hence, on this point, the order of detention has got to be set aside. It is relevant to be pointed out the last three lines of paragraph 7 in the order of detention which reads as follows: "The above petition was considered in the light of the report of the Revenue Divisional Officer, Mannargudi and the petition could not be considered in favour of the accused Boominathan." This would indicate the fact that the report of the Revenue Divisional Officer, Mannargudi was relied upon. If it is so the copy of the same should have been served upon the detenu to enable him to make effective representation but that was not done. The non-supply of the report of the R.D.O, Mannargudi is nothing but take away the right of the detenu from making effective representation. Under such circumstances, the Court is of the opinion that all the above points stand in favour of the petitioner to quash the order under challenge. 7. Therefore, the detention order is set aside. The Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1.The Secretary to Government, Home, Prohibition & Excise Department, Fort St.George, Chennai – 600 009. 2.The District Collector & District Magistrate, Tiruvarur District @ Tiruvarur. 3.The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 4. The Superintendent, Central Prison, Tiruchirapalli. 5. The Joint Secretary to Govt., Public (Law & Order) Fort Saint George, Chennai-9. 1 CC To Mr.O.S.Thilak Pasumbadiar, Advocate, SR NO.32878 H.C.P.NO.105 OF 2008 GR (CO) SMK/11.7.08 https://hcservices.ecourts.gov.in/hcservices/