IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.06.2008 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE S.PALANIVELU HCP.NO.128 OF 2008 Lalitha ... Petitioner Vs. 1.State represented by the Secretary to Government, Hopme,Prohibition and Excise Department, Fort St.George, Chennai 600 009. 2. The District Collector and District Magistrate, Tiruvannamalai District @ Tiruvannamalai. ...Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records of the second respondent, pertaining to the order made in D.No.10/2008-C2 dated 28.1.2008, in detaining the detenu under the Tamil Nadu Act 14 of 1982, as a Bootlegger and quash the same and direct the respondents to produce the detenu, namely, Babu, son of kasi, who is detained at the Central Prison, Vellore, before this Court and set him at liberty. For petitioner : Mr.O.S.Thilak Pasumbadiar For Respondents : Mr.M.Babu Muthu Meeran Additional Public Prosecutor --- O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to the order of the second respondent dated 28.1.2008 made in D.O.No.10/2008-C2 terming the detenu Babu as Bootlegger as defined under Act 14 of 1982. 2. Affidavit in support of the petition is perused. Heard the learned counsel for the petitioner as well as the learned https://hcservices.ecourts.gov.in/hcservices/ Additional Public Prosecutor and also the order under challenge is perused. 3. Admittedly, the second respondent, detaining authority on scrutiny of materials placed by the sponsoring authority pertaining to six adverse cases in Crime No.136 of 2005, 144 of 2006, 243 of 2006, 181 of 2007, 234 of 2007 and 331 of 2007 of Santhavasal Police Station under the Tamil Nadu Prohibition Act and one ground case in Crime No.416 of 2007 registered by the Santhavasal Police Station on 22.12.2007 and also other materials available, has recorded the finding that the authority has arrived at a subjective satisfaction that the said Babu was termed as Bootlegger and since the authority took the view that the acts of the detenu as noticed from the materials available would indicate that they were prejudicial to the public order and health, he was termed as Bootlegger and a necessity arose to pass an order of detention in order to prevent him from indulging in such activities in future and hence made the detention order, which is the subject matter of challenge before this Court. 4. Learned counsel for the petitioner in support of his contention would submit that the detention order was passed on 28.1.2008. The representation was made on 31.1.2008 and same was rejected by the detaining authority on 5.2.2008. In the said representation, it was clearly stated that the detenue was taken to Santhavasal Police Station, two days prior to the alleged incident i.e. on 20.12.2007 and he was kept under illegal custody for two days. Therefore, Para Register, Food Register and Search register were to be summoned and also verified by the detaining authority and apart from that the detenu should also be served with the copy of those documents. But, neither reference to the above is found in the order under challenge, nor copies of the documents were supplied to the detenu. Under such circumstances, the order is infirmed. Added to that, the learned counsel submitted that the occurrence in the ground case took place on 4.6.2007, but a case was registered by Santhavasal Police Station for the offence took place, according to the department, on 22.12.2007. All those materials alleged to have been seized from the detenu on 26.12.2007 and the delay in depositing the seized contraband have not been explained in the grounds of detention. Under such circumstances, doubt arises on the entire incident and hence the detaining authority should have called for clarification in that regard. Further, three remand extensions were made in Crime No.416 of 2007 before the Judicial Magistrate, Polur dated 23.12.2007, 4.1.2007, 18.1.2008, which did not contain the name of the accused/detenu. When representation was made including that aspect also, the order of rejection, which is now served on the detenu would indicate that it contain the name of the detenu also, https://hcservices.ecourts.gov.in/hcservices/ but it is not so. In that regard, clarification should have been called for. Further, a representation which was made on 31.1.2008 was actually not placed before the Advisory Board to take the correct decision either to approve or to reject the order under challenge. All the above circumstances would go to show that there was non- application of mind and hence certain infirmities were noticed. Hence, the detention order has got to be set aside. 5. The Court heard the learned Additional Public prosecutor on the above contentions. 6. The Court paid its anxious consideration to the submissions made. It is not in controversy that the order of detention terming the detenu as Bootlegger was made on 20.1.2008, where six adverse cases and one ground case were referred as detailed above. The ground case was actually made in Crime No.416 of 2007 by the Santhavasal Police Station and according to the Sponsoring authority the incident was took place on 22.12.2007. Hence it would be quite clear that in a case of prohibition like this, the property should have been seized at the time when the accused was arrested. But the property was actually deposited before the Judicial Magistrate, Polur, only on 26.12.2007. A request was made by the Sponsoring Authority to the Judicial Magistrate for sending the samples to the Regional Forensic Science Laboratory, Vellore, for chemical analysis on 20.12.2007, which casts doubt as to whether the contents of the letter were to be taken as true and correct. Under such circumstances, clarification should have been asked for by the detaining authority. 7.A representation was made on 31.1.2008 by the detenu to the detaining authority, whereby it is specifically stated that the detenu was taken to the police station on 20.12.2007 and kept under illegal custody for two days and hence such an incident as urged by the police on 22.12.2007 could not have been taken place at all. Under such circumstances, Para Register, Search Register and Food Register were to be summoned and verified by the detaining authority, but nowhere in the order such summoning or verification of those documents is pointed out. Further the detenu, in the course of representation sought for copy of the said documents, which was not served to him, which would clearly reveal the first part of non- application of mind on the part of the authority and second part, the non supply of those documents, which amounts to denial of valuable right of making effective representation. 8. Added further, in the instant case, three remand extensions could be noticed in the Crime No.416 of 2007. In those remand extensions orders, the name of the detenu does not find a place, but other particulars are given. In the representation made,the detenu has clearly asked for extension orders and hence the https://hcservices.ecourts.gov.in/hcservices/ copies have got to be served upon him. On the contrary, representation was rejected stating that all those extension orders contain the name of the accused, which is not true. Thus it would be quite clear that the representation was not considered, as expected from the authority. 9. The last ground raised in favour of the petitioner is that the representation which was given was actually not placed which was subsequently rejected by the detaining authority, was not placed before the advisory Board. Hence, no opportunity was given to the Advisory Board to consider the contention in the representation. Under such circumstances, the Court is of the considered opinion that there was non-application of mind on the part of the detaining authority and the detention order is infirm and illegal and it cannot be sustained. Hence the order of detention is vitiated. 10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in D.O.No.10/2008-C2 dated 28.1.2008. The detenu, namely, Babu, 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. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. VJY To 1.The Secretary to Government, Home,Prohibition and Excise Department, Fort St.George, Chennai 600 009. 2. The District Collector and District Magistrate, Tiruvannamalai District @ Tiruvannamalai. 3. The Public Prosecutor, High Court, Madras-104. + 1 CC To Mr.O.S.Thilak Pasumbadiar Advocate SR NO.30659 SGL HCP.NO.128 OF 2008 TP/1.7.08. https://hcservices.ecourts.gov.in/hcservices/