IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22/07/2004 CORAM THE HON'BLE MR. JUSTICE V. KANAGARAJ and THE HON'BLE MR. JUSTICE S. ASHOK KUMAR Habeas Corpus Petition No.609 of 2004 K.Kumar .. Petitioner Vs. 1. The State of Tamilnadu, rep. by its Secretary to Government, Prohibition & Excise Department, For St. George, Chennai - 9. 2. The District Magistrate, and District Collector, Nagapattinam 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 family friend of the detenu is the petitioner herein. He has come forward to file the above petition praying to issue a Writ of Habeas Corpus, calling for the records relating to the proceedings of the second respondent in COC.21/2004 dated 4.4.2004, quash the same as illegal and set the detenu Thirugnanam, S/o. Periyathambi, TPDA No.41 85, who is now confined in the Central Prison, Trichirappalli, at liberty forthwith. 2. The detenu has been detained on the ground that he was a Bootlegger, under the relevant provisions of Tamil Nadu Act 14 of 19 82. 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 perusal of the records, it comes to be noted by this Court that the ground case against the detenu in Mayiladuthurai Police Station Crime No.480/2004 has been registered under Sections 4(1)( aaa) r/ w.4(1-A) of the TNP Act 1937, wherein in the remand order, it is noted by the learned Magistrate that "the accused was produced and no complaint of ill-treatment; no prima facie case under Section 4(1-A) TNP Act and therefore, remanded only under Section 4(1)(aaa) TNP Act till 2.4.2004", thereby making it very clear that in spite of no case having been made out against the detenu under Section 4(1-A) of the T.N.P. Act in the said case at the time of remand, still the detaining authority has mentioned as though the case has been registered under that Sections also, on account of non-application of mind. The detaining authority, as stated in the relevant paragraphs, has proceeded on the assumption that the detenu has been remanded even under Section 4 (1-A) of the TNP Act, 1937. Therefore, it is a clear-cut case for non-application of mind at the time of passing of the detention order, as a result of which, the detention order definitely gets vitiated in law, and in these circumstances, this Court is left with no choice but to quash the detention order passed by the second respondent herein. 5. This Court's attention is also drawn to an earlier order passed by a Division Bench of this Court, wherein the Division Bench has decided a similar question involved in H.C.P. No.1026 of 2003 dated 1 9.11.2003 and it is relevant to extract the operative portion of the order, which is extracted hereunder : "Learned counsel for the petitioner contends that the order of detention is vitiated by non- application of mind, in that, the order of detention proceeds as if the detenu has been remanded for all the offences for which the crime has been registered while the remand order reflects that the remand has been made only in respect of the offences under Sections 4(1)(aaa) and 4(a)(i) of the Tamilnadu Prohibition Act. The detaining authority should have called for a report in this respect. At the time of remand, Section 4(1-A) was deleted by the Magistrate, since what has been seized under the mahazar has not been produced before the Court, the Magistrate declined to order remand for the offence under Section 4(1-A). Therefore, there is non- application of mind. It is pointed out that the detaining authority should have called for a report in this respect and without calling for a report, the order of detention has been passed as if the detenu has committed all the offences as has been registered against him in the first information report. This renders the detention illegal." 6. Falling in line with the above order of the Division Bench, since the present case is on similar 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 4.4.2004 made in COC.21/2004 by the second respondent herein is quashed; (iii) the detenu, viz., Thirugnanam, S/o. Periyathambi, is directed to be set at liberty forthwith unless his detention is required in any other case or cause. Index:Yes. Internet:Yes. sra To 1. The Secretary to Government, Prohibition & Excise Department, Fort St. George, Chennai - 9. 2. The District Magistrate and District Collector, Nagapattinam District. 3. The Superintendent Central Prison, Trichy. 4. The Joint Secretary to Government Public (Law & Order) Fort St. George Chennai 9. 5. The Public Prosecutor, High Court, Madras 