IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 11-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.49 of 2008 Sivanesan .. Petitioner vs 1.State of Tamil Nadu represented by Secretary to Government Home, Prohibition and Excise Department Fort St. George Chennai 600 009. 2.The District Magistrate and District Collector Vellore District, Vellore 632 009. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records relating to the detention order passed by the second respondent pertaining to the order made in C3./D.O.No.113/2007 dated 30.12.2007 in detaining the detenu under 2-b of Tamil Nadu Act 14 of 1982 as a bootlegger and quash the same and direct the respondents to produce the detenu Sivaji, son of Chinnaraj, aged about 38 years, who is detained at Central Prison, Vellore, before this Court and set him at lliberty. For Petitioner : Mr.O.S.Thilak Pasumbadiyar For Respondent : Mr.M.Babu Muthu Meeran Additional Public Prosecutor ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the second respondent made on 30.12.2007, in the proceedings in C3./D.O.No.113/2007 terming the friend of the petitioner by name Sivaji as a bootlegger. https://hcservices.ecourts.gov.in/hcservices/ 2.The affidavit in support of the petition along with the grounds of attack and the detention order under challenge are perused. The Court heard the learned Counsel for the petitioner. 3.Admittedly, on the strength of the recommendation made by the sponsoring authority whereby five adverse cases registered by Alangayam Police Station under the provisions of the Tamil Nadu Prohibition Act in Crime Nos.288/2005, 9/2006, 192/2006, 291/2006 and 9/2007, and one ground case registered by same police station in Crime No.747 of 2007 were noticed, the detaining authority on perusal of the materials placed before him, has formed an opinion and has also recorded a finding that the activities of the detenu were prejudicial to the maintenance of the public order and health, and hence, a necessity has arisen to invoke the provisions of Act 14/82, branding him as a bootlegger and detaining him under the provisions of that Act, and so, he passed the impugned order, which was subsequently approved by the State. The said order is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the detenu, the learned Counsel inter alia stressed that the order came to be passed on 30.12.2007; that the representation was given on 9.1.2008; that it has been rejected on 19.1.2008, and thus, there was a delay which remained unexplained; that though the order came to be passed on 30.12.2007, the booklet along with the materials were given to the detenu only on 4.1.2008, at about 12.30 p.m.; that in that also, there was a delay; that under the circumstances, he could not make effective representation within the reasonable time of 12 days; and that this has also caused prejudice to him. 5.Added further the learned Counsel that in the instant case, the detenu was actually remanded to custody on 2.12.2007, before the Judicial Magistrate No.IV, Tirupattur, and it has also been subsequently extended till 14.12.2007 and extended to 28.12.2007 and then upto 11.1.2008; but, he was subsequently transferred from the Sub Jail, Tirupattur, to Central Prison, Vellore; that it was not brought to the notice of the detenu; that the authority has not taken into account the said fact of transfer of the detenu from one prison to other, and hence, it is a clear case of non-application of mind. 6.The learned Counsel would further add that in the instant case, there was a FIR pertaining to Crime No.747/2007 dated 2.12.2007, one of the adverse cases stated in the order, which would reveal that at the time of interception, the detenu was found in possession of three liters of country arrack out of which 500 ml was taken for sample; that the same was also seized; that following the same, the recovery mahazar was also prepared; that a perusal of the same would indicate that 3 liters of country arrack found in a 5 liter can, were recovered; but, it did not whisper about the recovery of samples; that the non-mention of the recovery of samples in the recovery mahazar would cast a doubt whether it was actually recovered; that if to be so, the entire property was destroyed as could be seen; that it was actually not found in the other part of the material; that if there was discrepancy found, the authority should have called for clarification before passing the order in https://hcservices.ecourts.gov.in/hcservices/ question; and that the above would be indicative of the non- application of mind, which would suffice to set aside the order. 7.The Court heard the learned Additional Public Prosecutor on the above contentions. 8.It is not in controversy that the order of detention came to be passed on 30.12.2007, and there was a representation made on 9.1.2008. It was actually rejected on 19.1.2008. Necessary particulars and the dates during which the representation was considered, were placed in the hands of the Court. After making a perusal, the Court is unable to agree with the learned Counsel for the petitioner, and hence, that ground of delay in consideration of the representation has got to be rejected, and accordingly, it is rejected. 9.As far as the next contention that the detaining authority has not taken into account the transfer of the detenu from one prison to other is concerned, it has got to be rejected in view of the perusal of the order in question. It is true that the detenu on arrest was remanded to custody on 2.12.2007 by the Judicial Magistrate No.IV, Tirupattur, and he was lodged at Sub Jail, Tirupattur. Originally, the remand was extended till 14.12.2007, and it was extended thereafter till 28.12.2007 and then till 11.1.2008. Now, the intervening circumstance was the passing of the order on 30.12.2007. The same was served upon him the very day. A reading of the order would clearly reveal that for giving effect to the order, he has got to be transferred from Sub Jail, Tirupattur, and he must be put in custody at Central Prison, Vellore. Thus, it would be quite clear that the authority before passing the order, has made it clear that from the time onwards, he should be lodged at Central Prison, Vellore. It would also go to show that on the day he was not there. It is also quite evident that it is not a case where he was lodged in two prisons; but, he was all along continuing in one prison till the date of the order under challenge. Therefore, that contention has got to be rejected. Accordingly, it is rejected. 10.In respect of the third contention that there was a delay in serving the booklet, it has got to be discarded for the simple reason that the order came to be passed on 30.12.2007, and it was served upon him the very day along with the grounds of detention; but, the booklet was served upon him on 4.1.2008. The law would make it mandate that the order of detention along with the grounds of detention has got to be served upon the detenu immediately. Accordingly, it has been done; but, in the case on hand, the delay is noticed in the service of the booklet. Therefore, that contention has got to be rejected. 11.As far as the last contention is concerned, this Court is able to see sufficient force. The FIR which was originally registered, would clearly indicate that at the time of interception, the detenu was found to be in possession of 3 liters of country arrack contained in a can of 5 liter, out of which only 500 ml was taken as sample; but, the recovery mahazar does not indicate the fact of recovery of 500 ml, and there is a discrepancy found. Needless to https://hcservices.ecourts.gov.in/hcservices/ say that the recovery mahazar does not speak about the same, and it is a vital defect. While such a defect is found, the authority was duty bound to call for a clarification how it had crept in. Even without calling for clarification, the authority has passed the impugned order. In a case of prohibition, taking of sample and sending them to the Forensic Laboratory for the purpose of analysis are must. While the recovery mahazar does not speak about that fact, the authority before passing the order should have called for clarification and satisfied himself; but, no reference is made in the materials available and also in the order under challenge. Under the circumstances, this Court is of the considered opinion that there was thorough non-application of mind on the part of the authority who passed the order, and hence, it has got to be set aside. Though not the petitioner could make out a case on the first three grounds, on the last ground this Court is satisfied to quash the same. 12.Accordingly, the impugned order of the second respondent is quashed, and this habeas corpus petition is allowed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1.Government of Tamil Nadu Home, Prohibition and Excise Department Fort St. George Chennai 600 009. 2.The District Magistrate and District Collector Vellore District, Vellore 632 009. 3. The Superintendent, Central Prison, Vellore (In duplicate for communication to detenue) 4. The Joint Secretary to Government, Public(Law and order) Fort St. George, Chennai-9. 5.The Public Prosecutor High Court, Madras. HCP No.49 of 2008 ss [co] gkg/20.6 https://hcservices.ecourts.gov.in/hcservices/