IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 25.08.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN H.C.P. No.798 of 2010 Shanthi ... Petitioner Vs. 1.The District Magistrate/ District Collector, Salem District, Salem. 2. The Secretary to the Government, Home, Prohibition and Excise Department., Fort St. George, Madras. ... Respondents Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the records in C.M.P. No.5/B.L.A./C2/2010 dated 8.3.2010 on the file of the 1st respondent and quash the same and direct to produce the petitioner's husband Uthaman S/o. Ganesan, who is now detained in Central Prison, Salem before this Court and set him at liberty. For Petitioner : Mr. V. Bhiman for Mr. R. Asaithambi For Respondents : Mr. Babu Muthu Meeran, Additional Public Prosecutor O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) This petition is brought forth by the wife of the detenu challenging the order of the first respondent in C.M.P. No.5/B.L.A./C2/2010 dated 8.3.2010, whereby the detenu Uthaman was ordered to be detained as a Bootlegger under the provisions of the Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/ 2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge. 3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in four adverse cases viz. (i) Attur P.E.W. Crime No.718/08 for the offence under Section 4(1)(a) of TNP Act; (ii) Attur P.E.W. Cr.No.187/2009 for the offence under Section 4(1)(i) of TNP Act; (iii)Attur P.E.W. Cr.No.1087/09 for the offence under Section 4(1)(aaa) of TNP Act and (4) Attur P.E.W. Cr.No.1747/09 for the offence under Section 4(1)(aa) of TNP Act and the ground case in Crime No.67 of 2010 registered by Attur Prohibition Enforcement Wing for the offences under Sections 4(1)(i) and 4(1-A) of Tamil Nadu Prohibition Act for the incident that had taken place on 27.01.2010 and the detenu was arrested on the same day, the Detaining Authority, on scrutiny of materials placed by the Sponsoring Authority and after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, passed the detention order, which is the subject matter of challenge before this Court. 4. Advancing arguments on behalf of the petitioner, learned counsel raised two points to set aside the detention order. Firstly, the detenu filed bail application in the ground case in C.M.P. No.376 of 2010 and the same was dismissed on 2.3.2010 by the learned Principal Sessions Judge, Salem and thereafter no bail application was filed. However, in the order of detention, the Detaining Authority has observed that if he applies for bail, there is a real possibility to be released on bail, which is without any material or cogent material. 5. The second ground raised by the learned counsel is that in the seizure mahazar as found in page No.34 of the booklet, the seizure of contraband is shown as 17.15 hours and thereafter, the case was registered by Attur Prohibition Enforcement Wing at 22.30 hours, but the seizure mahazar contains the crime No.67 of 2010. If really, the seizure was made at 17.15 hours and the case was registered at 22.30 hours at the Police station, the seizure mahazar could not contain the Crime number. Hence, it is highly doubtful. In such circumstances, a clarification should have been called for by the Detaining Authority, but not done so. On these grounds, the detention order has got to be set aside. 6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 7. As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenu as a Bootlegger, on the strength of the materials placed before him pertaining to four adverse cases and one ground case as referred to above, and after arrived at a subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. It is an admitted position that the detenu has filed bail application in the ground case in C.M.P. No.376 of 2010 and the same was dismissed on 2.3.2010 by the learned Principal Sessions Judge, Salem and the detention order came to be passed on 8.3.2010. Hence, when the detention order was passed, no bail application was pending before any criminal Court, But the Detaining Authority has observed in its order as follows:- " I am aware that Tr.. Uthaman had been remanded to judicial custody in this case on 28.1.2010 and that he is still in Sub-jail, Attur as a remand prisoner. A bail application dated 1.3.2010 for the ground case filed by Tr.Uthaman was dismissed on 2.3.2010 by the Principal Sessions Judge, Salem in C.M.P. No.376 of 2010. But the real possibility of his filing a bail application again in near future cannot also be ruled out. I am aware that if he applies for bail, there is a real possibility to be released on bail, because in similar cases bail is granted by the same Court or the higher Court after efflux of certain time. If he is let out on bail and he is let to remain at large, he is likely to indulge in such prejudicial activities in future as well. Therefore, there is a compelling necessity to pass the order of detention with a view to preventing him from indulging in activities prejudicial to the maintenance of public order and public health. On the consideration of the records placed before me, I am satisfied that Thiru. Uthaman is a "BOOTLEGGER" and that there is a compelling necessity to keep him under detention as per the provisions of section 2(b) of Tamil Nadu Act 14 of 1982 in order to prevent him from indulging in activities which are prejudicial to the maintenance of public order and public health." 8. From the above, it would be quite clear that when the detention order was passed by the Detaining Authority, no bail application was pending, but the Authority has observed that there https://hcservices.ecourts.gov.in/hcservices/ was a real possibility of the detenu coming out on bail. It is only an expression of the impression in the mind of the Authority and only an inference and that too without any basis or materials much less cogent materials as the law would require. 9. Apart from this, as rightly pointed out by the learned counsel appearing for the petitioner, in the seizure mahazar as found in page No.34 of the booklet, the seizure of contraband is shown as 17.15 hours and thereafter, the case was registered by Attur Prohibition Enforcement Wing at 22.30 hours, but the seizure mahazar contains the crime No.67 of 2010. If really, the seizure was made at 17.15 hours and the case was registered at 22.30 hours at the Police station, the seizure mahazar could not contain the Crime number. In such circumstances, a clarification should have been called for by the Detaining Authority, but not done so. On these two grounds, the order of detention has got to be set aside. 10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the first respondent in C.M.P. No.5/B.L.A./C2/2010 dated 8.3.2010. The detenu Uthaman, who is now confined at Central Prison, Salem is directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case. ssa. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The District Magistrate/ District Collector, Salem District, Salem. 2. The Secretary to the Government, Home, Prohibition and Excise Department., Fort St. George, Madras. 3.The Superintendent, Central Prison, Salem. https://hcservices.ecourts.gov.in/hcservices/ 4.The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. + 1 cc to Mr. R. Asaithambi, Advocate SR No.63033 GV(CO) SR/15.9.2010 H.C.P. No.798 of 2010 https://hcservices.ecourts.gov.in/hcservices/