IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.06.2008 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE S. PALANIVELU HCP.No.90 of 2008 Vasantha ... Petitioner Vs. 1.The State of Tamil Nadu, rep. by its Secretary to Government, Prohibition and Excise Department., Fort St.George, Chennai – 9. 2. The District Collector & District Magistrate, Tiruvannamalai District, Tiruvannamalai. ... Respondents Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the entire records relating to the petitioner's husband's detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 11.01.2008 on the file of the second respondent herein, made in proceedings D.O.No.04/2008 – C2, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely Kanniappan before this Court and set the petitioner's husband at liberty from detention. For Petitioner : Mr. C.C. Chellappan For Respondents: Mr. M. Babu Muthu Meeran Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) Challenge is made to an order dated 11.01.2008 passed by the second respondent herein in proceedings D.O.No.04/2008 – C2, terming the petitioner's husband Kanniappan as "Bootlegger" and detained under the Act 14 of 1982. 2. Affidavit filed in support of the petition is perused. The order under challenge is also scrutinized. The Court heard the learned counsel appearing for the petitioner. 3. Concededly, the Sponsoring Authority made his recommendation to detain the detenu, by placing the materials pertaining to Crime Nos.80 of 2007, 165 of 2007, 107 of 2007, 133 of 2007, 139 of 2007 and 186 of 2007, registered by Brammadesam police station under the provisions of the Tamil Nadu Prohibition Act and the materials pertaining to ground case in Crime No.226 of 2007 under the provisions of the said Act. . The Detaining Authority has recorded that he arrived at a subjective satisfaction on the materials available on record and also on the fact that the detenu Kanniappan was indulged in an activity, prejudicial to the maintenance of public order and public health he was termed as "Bootlegger" and apart from that, in order to prevent him from indulging his further activities in future, the order of detention under the Act 14 of 1982 was passed. The said order is the subject matter of challenge before this Court. 4. Learned counsel appearing for the petitioner, in his sincere attempt of assailing the order under challenge, made the following submissions:- (i) At the time of arrest on 9.12.2007, a seizure mahazar was prepared by the police department and the same was also placed before the Court, but the seizure mahazar, when looked into, did not contain any particulars as to the plastic cane, which, according to the report, was actually seized from the accused at that time and thus, the said plastic cane, which was alleged to have been recovered as per the report, was not actually placed before the Court and thus, it was a case, where, clarification should have been called for, but the Detaining Authority had not done so. (ii) In the ground case registered against the detenu by the prohibition wing on 9.12.2007, a requisition for sending the arrack for the purpose of ananlysis was made on the same day i.e. https://hcservices.ecourts.gov.in/hcservices/ on 9.12.2007, wherein it is stated that contraband were sent and deposited in the Court on 9.12.2007 itself, but from the perusal of the materials, it is quite clear that when the illicit arrack was sent for analysis, the same was made without even depositing the contraband in the Court and thus, it was a case, where the Detaining Authority has to clarify the same as to how such a requisition was made, but the Detaining authority has not adverted his attention over the same. (iii) Apart from that, in the representation made on 24th January, 2008, it is stated that a copy of the Certificate issued by the medical person as referred to in paragraph 3 of the order that it contains poisonous substance was not furnished. Under such circumstances, the copy of such Certificate issued by medical person should have been supplied, but not done so and thus, the detenu was deterred to put forth his effective representation and thus, he was denied the valuable right to which he was entitled to. As such, the order of detention has got to be set aside. 5. The Court heard the learned Additional Public Prosecutor on the above contentions. 6. On a perusal of materials available on record and considering the submissions made by either side, the Court is of the considered opinion that the order under challenge has got to be set aside. The order under challenge came to be passed on 11.01.2008 on the strength of six adverse cases and one ground case under the provisions of the Tamil Nadu Prohibition Act. In the opinion of the Court, it is not necessary to put forth the details as found in the order under challenge. 7. As rightly pointed out by the learned counsel for the petitioner, the order would refer to that at the time when the accused/detenu was arrested, he was found in possession of illicit arrack and at that time two mahazars were prepared, one is the destruction mahazar and the other one is the mahazar and in so far as the destruction mahazar is concerned, it was referred to that there was a plastic cane, but when the material objects were placed before the Court, it did not contain the particulars in respect of cane what was referred to in the order. Thus, it would clearly indicate the fact that it was not produced. In the circumstances, a discrepancy was found, that too, in respect of material object, alleged to have been seized from the accused in respect of Prohibition case, would naturally cast a doubt. Hence, the Detaining Authority has to call for explanation, which was not done. https://hcservices.ecourts.gov.in/hcservices/ 8. Secondly, a requisition was made by the police Officials concerned for sending the contraband for analysis on 9.12.2007, on the date of production of the accused. But, as could be seen from the materials from the booklet, the said contraband and articles were recovered only on 11,12,2007, which would mean that on the date when requisition was made i.e. on 9.12.2007, the material object including the contraband which has to be placed for analysis, was not actually placed. It also cast doubt. 9. Added circumstance is that when the order under challenge referred to the Certificate issued by the medical person that the illicit contraband seized contains poisonous substances, by way of representation when the detenu asked for a copy of the Certificate issued by the medical person, it was not supplied. It was the denial of opportunity to the detenu to submit his effective representation. 10. It is quite clear from all the above that the order under challenge has got to be interfered with and the same has got to be set aside. 11. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order dated 11.01.2008 passed by the second respondent in proceedings D.O.No.04/2008 – C2. The detenu, namely, Kanniyappan, who is now confined at Central Prison, Vellore is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Ssa. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary to Government of Tamil Nadu, Prohibition and Excise Department., Fort St.George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Collector & District Magistrate, Tiruvannamalai District, Tiruvannamalai. 3. The Superintendent, Central Prison, Vellore. 4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St George, Chennai 9. 5. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. C. C. Chellappan, Advocate SR No. 30527 H.C.P. No.90 of 2008 CK(CO) SR/27.6.2008 https://hcservices.ecourts.gov.in/hcservices/