IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.1.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1660 of 2007 C.Babu .. Petitioner Vs. 1. The State of Tamilnadu rep. by its Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9. 2. The Commissioner of Police Salem City. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Mr.R.Subadra Devi For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R (Order of the Court was made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu – Kalaimani, friend of the petitioner, as the said authority arrived at the subjective satisfaction that the said detenu is a Bootlegger and he has to be detained under Section 3(1) 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). 2.1. The order of detention dated 22.10.2007 came to be passed by the second respondent on the basis of the ground case, registered in Crime No.429 of 2007 pursuant to the prohibition raid conducted by the Inspector of Police, Prohibition Enforcement Wing, Salem City for the offences punishable under Sections 4(1)(i), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act. On 9.10.2007 at 0900 hours, the Inspector of Police and his police party proceeded to detect prohibition offences, they found the detenu selling arrack. The apprehended him on the spot and the contraband https://hcservices.ecourts.gov.in/hcservices/ was seized. The samples were sent for chemical analysis and report reveals that the sample of arrack contained 6.4%mg of Atropine per 100 ml, and the same would endanger life. 2.2. Apart from the above, the detaining authority also took note of three adverse cases pending against the detenu, viz., Crime No.985 of 2007 on the file of Annadhanapatty Police Station for the offences punishable under Section 4(1)(a) of the Tamil Nadu Prohibition Act; and Crime Nos.403 and 422 of 2007 on the file of Salem City Prohibition Enforcement Wing for the offences punishable under Sections 4(1)(aa) and 4(1)(i) of the Tamil Nadu Prohibition Act. 2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order and public health, passed the impugned order. 3. Challenging the said detention, the friend of the detenu has preferred this Habeas Corpus Petition seeking a writ of habeas corpus to direct the respondents to produce the detenu before this Court, now confined in Central Prison, Salem and to call for the records of the respondents relating to the order of detention vide proceedings C.M.P.No.28/B.L./Salem City/2007, dated 22.10.2007, to set aside the same and to set the detenu at liberty. 4. Heard the learned counsel for the petitioner and Mr.N.R.Elango, learned Additional Public Prosecutor for the respondents. 5. The learned counsel for the petitioner challenges the order of detention on the ground of non-application of mind on the part of the detaining authority to the fact that the ground case is said to have taken place on 9.10.2007 at about 0910 hours and the case was registered on the same day at 1230 hours, but in the destruction mahazar found at page 25 of the booklet, which was recorded at 1045 hours, the crime number has been stated, which was concededly registered only after 1230 hours. 6. From the materials available on record, as contended by the learned counsel for the petitioner, it is evident that the ground case took place on 9.10.2007 at about 0910 hours and the case was registered in Crime No.429 of 2007 on the same day at 1230 hours, but in the destruction mahazar found at page 25 of the booklet, which was recorded at 1045 hours, the crime number has been stated. There is no explanation on the part of the detaining authority as to how the crime number came to be mentioned in the observation mahazar, which was around two hours earlier than the registering of the crime. The police have not filed any affidavit as to how they got the crime number, viz., by using wireless or cellphone to contact the relevant police station to ascertain the crime number. The absence of any such affidavit filed on behalf of the Sponsoring authority and the failure of the detaining authority to get an explanation on this aspect vitiates the order of detention. https://hcservices.ecourts.gov.in/hcservices/ For the aforesaid reason, the petition is liable to be allowed and hence, the same is allowed. The order of detention dated 22.10.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in any other crime. No costs. sasi Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Secretary to Government Prohibition and Excise Department State of Tamilnadu Fort St.George, Chennai-9. 2.The Commissioner of Police Salem City. 3.The Joint Secretary to Government, Public (Law & Order) Department, Fort St. George, Chennai-9. 4.The Public Prosecutor High Court, Madras. 5.The Superintendent, Central Prison, Salem. +1 cc to M/s.R.Subadradevi, Advocate Sr.No.1334. RSV(CO) DCP/22.1 H.C.P.No.1660 of 2007 https://hcservices.ecourts.gov.in/hcservices/