IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.96 OF 2008 Venkatammal .. Petitioner Vs. 1.The District Collector and District Magistrate, Tiruvallur District, Tiruvallur. 2.The Secretary, Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai-600 009. .. Respondents This habeas corpus petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of habeas corpus, directing the respondents herein to produce the detenu Babu, son of Balaraman, who is detained under Act 14/82 by the District Collector and District Magistrate, Tiruvallur in his proceedings No.BDFGISSV No.23/2007, dated 31.10.2007, now confined in the Central Prison, Puzhal before the court and to quash the same and set him at liberty forthwith. For Petitioner : Mr.A.N.Rajan For Respondents: Mr.Babu Muthu Meeran, APP - - - - ORDER (The order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the first respondent made in B.D.F.G.I.S.S.V.No.23/2007, dated 31.10.2007, whereby one Babu was termed as Bootlegger under the provisions of Tamil Nadu Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/ 2.The affidavit filed in support of the petition and the grounds of detention are perused. The order under challenge is also perused. The Court heard the learned counsel for the petitioner and also the learned counsel for the State. 3.Concededly, the order under challenge came to be passed by the first respondent, Detaining Authority, on the strength of the recommendations made by the Sponsoring Authority, whereby 5 adverse cases, namely Crime Nos.229/2006, 23/2007, 192/2007, 202/2007 and 360/2007 registered by Vengal Police Station and also one ground case in Crime No.364/2007 were noticed. The Detaining Authority has arrived at subjective satisfaction, on scrutiny of the materials available, that the activities of the detenu were prejudicial to the maintenance of public order and health and hence he has got to be termed as Bootlegger. Further, in order to prevent him from indulging in such activities in future, a necessity arose to detain him under the provisions of the Tamil Nadu Act 14 of 1982 and hence he made the order of detention. The said order is the subject matter of challenge before this court. 4.The learned counsel, in his sincere attempt of assailing the order under challenge, has made the following submissions: The ground case was registered in Crime No.364 of 2007 on 19.10.2007. The detenu was arrested and the seizure memo has been prepared and the illicit arrack were recovered at about 9.45 a.m. As per the materials available, the case was registered at about 11.30 a.m., but the seizure mahazar and the other records prepared at the scene of occurrence contained the crime number, which could not have taken place at all. Hence a clarification should have been called for by the Detaining Authority, but he failed to do so. The relatives of the detenu were not informed as to the arrest of the detenu by the Sponsoring Authority immediately or within a reasonable time and no material is available to indicate the same. Thirdly, a post-detention representation was made on 16.11.2007, but it remained unconsidered for a long time. Fourthly, the bail application was filed before the Court of Sessions, Thiruvallur and the same was also pending. The Detaining Authority has pointed out that even after dismissal of the same, there was all possibilities of the detenu coming out on bail by filing another bail application. It was only a mere statement made without any material available. 5.Added further the learned counsel that the order of detention came to be passed on 31.10.2007; that the Sponsoring Authority has obtained a certificate from the medical person that the illicit arrack seized from the detenu contained poisonous substance; that the said certificate was also placed before the Detaining Authority on the very day; that the order was also passed on 31.10.2007, but a copy of the said certificate was not furnished to the detenu, which was a denial of right to make effective representation and hence the order of detention has got to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 6.The court heard the learned Additional Public Prosecutor on the above contentions. 7.After a thorough scrutiny of the materials available and considering the submissions made, the Court is of the considered opinion that the order of detention has got to be set aside for the following reasons: It is not in controversy that the order came to be passed on 31.10.2007 by the Detaining Authority on the recommendations made by the Sponsoring Authority, placing materials in respect of 5 adverse cases and one ground case. From a perusal of the materials, it could be seen that the ground case is shown as Crime No.364 of 2007 and the arrest was made on 19.10.2007. The case was registered at about 11.30 a.m. under the provisions of the Tamil Nadu Prohibition Act, but the arrest and seizure of illicit arrack have taken place at about 9.45 a.m. If to be so, the arrest card and the seizure mahazar could not have contained the crime number, but in the instant case, a perusal of those materials would clearly indicate that the crime number was actually given at about 9.45 a.m. and hence naturally, a doubt would arise. The Detaining Authority should have called for explanation, but not done so. Further, the law would mandate that immediately after the arrest of the detenu, the close relatives of the detenu should be informed about the arrest and other particulars, but in this regard, no materials were placed before the court to accept the case of the respondents that it was done so. 8.The next contention that there was delay in considering the post-detention representation cannot be accepted, in view of the particulars placed by the respondents' side. On perusing the materials, the court is unable to see any delay at all and hence that contention is rejected. Equally, the next contention that the bail application was filed before the Court of Sessions, Thiruvallur and the same was also pending. The mere pendency of the bail application was mentioned in the order. But, at the same time, the Authority has also pointed out that there was possibility of filing a new application. At this juncture, it cannot be said to be a mere statement made by the Authority, since already a bail application was pending, which was also mentioned in the order and hence the same cannot be a ground to set aside the order. 9.The court is able to see sufficient force in the contention that a certificate of medical person was obtained on 31.10.2007 to the effect that the illicit arrack seized from the detenu contained poisonous substance, but the copy of the same was not furnished to the detenu. It is a matter of surprise to note that the certificate itself was received on 31.10.2007 and it was also placed before the Authority on the very day and it was the material placed for passing such an order of detention on 31.10.2007. While such a certificate was actually placed by the Sponsoring Authority and relied on by the Detaining Authority, it could be termed as relied document. If to be so, a copy of the said certificate issued by the medical person should have been given to the detenu for making effective https://hcservices.ecourts.gov.in/hcservices/ representation, but it was not done so. This would clearly indicate the denial of valuable right of the detenu in making effective and efficacious representation, for which the detenu is entitled to, which in the opinion of the Court, would be sufficient to quash the order of detention. 10.Accordingly, the detention order is set aside. The Habeas corpus petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1.The District Collector and District Magistrate, Tiruvallur District, Tiruvallur. 2.The Secretary, Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai-600 009. 3.The Superintendent, Central Prison, Puzhal, Chennai. 4.The Joint Secretary to Govt., Public (Law & Order) Department, Fort St.George, Chennai-9. 5.The Additional Public Prosecutor, High Court, Madras. + 1 CC To Mr.A.N.Rajan Advocate SR NO.30768 H.C.P.NO.96 OF 2008 SGL {CO} TP/27.6.08. https://hcservices.ecourts.gov.in/hcservices/