IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20/07/2004 CORAM THE HON'BLE MR. JUSTICE V. KANAGARAJ and THE HON'BLE MR. JUSTICE S. ASHOK KUMAR Habeas Corpus Petition No.438 of 2004 Mrs.Kasthuri .. Petitioner -VS- 1. State, rep. by its Secretary to Government, Prohibition & Excise Department, For St. George, Chennai - 9. 2. The District Magistrate, and District Collector, Kancheepuram District. .. Respondents Petition filed under Article 226 of the Constitution of India praying for the relief as stated therein. For petitioner : No appearance For respondents : Mr. Abudu Kumar Rajarathinam Government Advocate (Crl. side) :O R D E R (Order of the Court was delivered by V. KANAGARAJ,J.) The detenue is the petitioner herein and she has come forward to file the above petition praying to issue a Writ of Habeas Corpus, calling for the records relating to the order in B.D.F.G.I.No.05/2004 dated 5.2.2004 passed by the second respondent herein, quash the same as illegal and further direct the respondents to produce the body of the petitioner/detenue viz.,Tmt.Kasthuri W/o Venugopal who is now confined in the Special Prison for Women, Vellore, before this Court and set her at liberty forthwith. 2. The detenue has been detained on the ground that she was a Bootlegger under the relevant provisions of Tamil Nadu Act 14 of 1982. 3. Heard Mr. Abudu Kumar Rajarathinam, learned government advocate on the criminal side with no representation made on the part of the petitioner. 4. On a perusal of the records, it comes to be known that the second respondent has passed the order of detention as against the detenue branding her as a Boot-Legger on account of the threat caused by her to the public order. It further comes to be known that already 10 cases have been registered as adverse cases against the detenue, of which, one is a case under Section 4(1)(aaa) R/w Section 4(1-A) of T. N.P.Act 1937. 5. It further comes to be seen from the order of detention passed by the detaining authority, this Court is able to come across one serious anomaly viz., non-application of mind on the part of the detaining authority exhibited on the part of the sponsoring authority. 6. So far as the point regarding non-application of mind on the part of the detaining authority is concerned, in para.5(i) of the grounds of detention, it is stated by the detaining authority that there is an imminent possibility of the the detenue coming out on bail for the offences under Section 4(1)(aaa) r/w 4(1-A) TNP Act, 1937 by filing bail applications before the Court, which shows that there is non-application of mind on the part of the detaining authority in stating that there is imminent possibility of her coming out on bail. Therefore, there is no material on record to show that the detaining authority has independently applied his mind without taking into consideration the statement of the sponsoring authority, and hence, the order of detention gets vitiated. 7. This Court's attention is also drawn to a decision of the Apex Court rendered in Rivadeneyta Ricardo Agustin v. Govt. of Delhi reported in 1994 SCC (Cri) 354, wherein it is held therein: "7. .... 8. The above statement merely speaks of a "possibility" of the detenu's release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunnissa. 11. In these circumstances, we must hold that the principle enunciated by this Court in Kamarunnissa v. Union of India squarely applies and the order is liable to be quashed. It is accordingly quashed." Falling in line with the above decision of the Apex Court, since the present case is on similar set of facts and circumstances, this Court has to pass its order in the following manner :- In result, (i) the above Habeas Corpus Petition is allowed; (ii) the detention order dated 5.2.2004 made in B.D.F.G.I.S.No.05/2 004 by the second respondent herein is quashed; (iii) the detenue, viz.,Tmt.Kasthuri W/o Venugopal is directed to be set at liberty forthwith unless his detention is required in any other case. Index:Yes Internet:Yes. Gr. To 1. The Secretary to Government of Tamil Nadu, Prohibition & Excise Department, Fort St. George, Chennai - 9. 2. The District Magistrate and District Collector, Kancheepuram District. 3. The Superintendent, Special Prison for Women, Vellore. 4. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai-9. 5. The Public Prosecutor, High court, Madras. 