IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.07.2008 Coram :- The Honourable Mr.Justice D.MURUGESAN and The Honourable Mr.Justice S. PALANIVELU H.C.P.No.174 of 2008 Smt. Bagyavathi .. Petitioner vs. 1. District Collector and District Magistrate, Villupuram. 2. The Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai-9. .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records of the first respondent in connection with No.C2/4501/2008 dated 31.1.2008 and quash the same and produce the detenu Deena @ Dhinagaraj S/o Jayaramma Gounder before this Court and set at liberty. For Petitioner : Mr. R. Rajarathinam For Respondents : Mr. M. Babu Muthu Meeran Additional Public Prosecutor O R D E R (ORDER OF THE COURT WAS MADE BY S.PALANIVELU, J) The petitioner is mother of the detenu by name Deena alias Dhinagaraj, who has been detained by means of the proceedings dated 21.01.2008 in No.C2/4501/2008 by the first respondent, branding him as Bootlegger. https://hcservices.ecourts.gov.in/hcservices/ 2. He came to adverse notice of police in three cases registered under the provisions of Tamilnadu Prohibition Act, 1937. The ground case on which the detention order has been made is that on 12.01.2008 at 11.00 a.m., while the Sub-Inspector of Police, Valavanur Police Station along with his party conducted prohibition raid at Periyakuchipalayam Village, he noticed the detenu sitting on the ground at Periyakuchipalayam railway gate and poured something in a plastic tumbler from one small white colour plastic can and got money after giving the same to a person standing before him. The person who consumed arrack escaped when the police party surrounded the detenu. They arrested the detenu and also recovered illicit arrack and a sum of Rs.50/- from him. A case was registered in Cr.No.42 of 2008 under Sections 4(1-A) and 4(1)(i) of Tamil Nadu Prohibition Act 1937, against the detenu. 3. Mr. R. Rajarathinam, learned counsel for the petitioner contends that a perusal of the detention order would show that there was no application of mind on the part of the detaining authority. He draws the attention of the Court to a portion in paragraph 5 of the detention order wherein it is found as follows: "...Thiru Deena alias Dhinagaraj, Son of Jayarama Gounder has filed a bail application before the Court of Principal District and Sessions Judge at Villupuram in C.M.P.No.1427/2008 for Cr.No.42/2008 and the same is pending. However, it is very likely that he may come out on bail by filing a bail application before the same or High Court. If he comes out on bail, he will indulge in future activities, which will be prejudicial to the maintenance of Public Health and Public Order." It is his mainstay that though bail application filed by the detenu is pending, it is incomprehensible when the application would be disposed of and whether the bail could be granted. 4. Heard Mr.M. Babu Muthu Meeran, learned Additional Public Prosecutor on the above said circumstances. 5. When a bail application is already pending before the competent Court, whose date and nature of disposal could not be foreseen by anybody else, it is strange to mention that he would file another application and get order. This is classical instance of non application of mind. https://hcservices.ecourts.gov.in/hcservices/ 6. This Court in H.C.P.No.572 of 2006 [Jayalakshmi vs. State of Tamil Nadu and another] dated 22.8.2006 passed an order wherein similar circumstance arose. It is observed that the detaining authority has mentioned in one place about the pendency of the bail application filed by the detenu before the High Court and in another place he has referred that there is every possibility of the detenu filing a bail application and it is the case of non application of mind on the part of the detaining authority in passing the impugned order of detention and thus detention order is liable to be quashed. 7. In a recent decision of this court passed in H.C.P.No.207 of 2008 [Sumathi vs. State of Tamil Nadu and another] dated 30.06.2008 [in which one of us constituted the Corum], it is observed as follows: "...... As rightly pointed out by the learned counsel for the petitioner, the order of detention reads that a bail application was filed by him in Crl.M.P.No.315/2008 before the Judicial Magistrate, Avinashi and the same was also pending during the relevant time, but the Authority has pointed out that there was possibility of his coming out on bail by filing a bail application before the said court or Higher Court. Thus, it would clearly reveal that the Authority has meant that there was possibility of filing another bail application. While the first bail application was pending before the Judicial Magistrate and even the disposal of the bail application was not known at that time, stating that there was all possibility of the detenu coming out on bail by making another bail application was nothing, but non application of mind. Under these circumstances, the decision of this Court, as referred to above, has got an application and the same has got to be accepted accordingly. Hence, it is a fit ground, on which the order under challenge has got to be set aside." https://hcservices.ecourts.gov.in/hcservices/ 8. In view of the consistent judicial opinion rendered by this Court as well as considering the identical circumstances available in this case, it has got to be necessarily held that the detaining authority has not properly applied his mind at the time of passing the detention order. In view of the above, the impugned detention order is liable to be quashed. 9. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention dated 31.01.2008 passed by the first respondent is quashed. The detenu shall be set at liberty forthwith, unless he is required in connection with any other case. ggs Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai-9. 2. District Collector and District Magistrate, Villupuram. 3. The Superintendent, Central Prison, Cuddalore. 4. The Joint Secretary to Government Public (Law and order) Fort St. George, Chennai-9. 5. The Public Prosecutor, High Court, Madras. 1 cc to Mr.R.Raja Rathnam, Advocate, SR.36078 ksj (co) dv./25.7. H.C.P.No.174 of 2008 https://hcservices.ecourts.gov.in/hcservices/