IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 01.04.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S. KARNAN HCP. No.2300 of 2009 Jayalatchumi ..Petitioner Vs. 1. The Secretary to the Government, Home, Prohibition and Excise Department., Chennai – 600 009. 2. The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Krishnagiri, Krishnagiri District. 3. The Inspector of Police, Singarapettai Police Station, Krishnagiri District. ..Respondents Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to direct the respondents to produce the petitioner's husband Gopi S/o Ramasamy, aged 35 years and now confined at Central Prison, Salem before this Court and set him at liberty forthwith by calling for the records relating to order in S.C. No.54 of 2009 dated 1.12.2009 and set aside the same on the file of the second respondent. For Petitioner : Mr. K. Mathan For Respondents : Mr. V.R. Balasubramanian, Additional Public Prosecutor O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) Challenge is made to an order dated 1.12.2009 passed by the second respondent in S.C. No.54/2009, whereby, an order of detention came to be passed against the detenu Gopi, who is the husband of the https://hcservices.ecourts.gov.in/hcservices/ petitioner, under the Act 14 of 1982, after terming him as "Bootlegger". 2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge. 3. It is not in controversy that pursuant to the recommendation made by the sponsoring Authority that the detenu is involved in three adverse cases viz. (i) Singarapettai police station Crime No.284 of 2009 for the offences under Sections 4(1)(aaa) of the Tamil Nadu Prohibition Act, 1937 (ii) Singarapettai police station Crime No.414 of 2009 for the offence under Section 4(1)(i) of the Tamil Nadu Prohibition Act, 1937 (iii) Singarapettai police station Crime No.505/2009 for the offence under Section 4(1)(i) of the Tamil Nadu Prohibition Act, 1937 and also a ground case in Crime No.595 of 2009 registered by Singarapettai police station for the offence under Section 4(1)(i) read with 4(1-A) of the Tamil Nadu Prohibition Act, 1937 and on scrutiny of materials, the detaining Authority, after arriving at a subjective satisfaction that the detenu is a "Bootlegger, passed the detention order. 4. Learned counsel appearing for the petitioner, while attacking the detention order, submitted that as could be seen from the order, a case was registered by Singarapettah police station in Crime No.595 of 2009 for the offence under Section 4(1)(i) read with 4(1-A) of the Tamil Nadu Act as if the detenu sold illicit arrack which contains the poisonous substance. After registration of the case and seizure of contraband, the complainant was sent for treatment to the Government Hospital Uthangarai, but no documentary proof was filed before the detaining Authority to prove the same. 5. Learned counsel added further that it is stated in the order that an bail application was filed and it is pending and further the Authority has stated that there is a real possibility of the detenu coming out on bail, which is without any basis or material much less cogent material. As could be seen from the order, the investigator recovered the illicit arrack on 21.11.2009, but the same was sent to the Court after a period of three days, which should have caused prejudice to the detenu. In an ordinary event, the Detaining Authority should have called for explanation from the sponsoring Authority, but failed to do so. On these grounds, the order of detention vitiates and the order has got to be set aside. 6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. After scrutiny of entire materials available on record, the Court is of the considered opinion that the detention order has https://hcservices.ecourts.gov.in/hcservices/ got to be set aside. It is not in controversy that ground case was registered by Singarapettah police station in Crime No.595 of 2009 for the offence under Section 4(1)(i) read with 4(1-A) of the Tamil Nadu Act. As could be seen from the order, at page No.4, at the time of investigation, the complainant was sent for taking treatment to the Government Hospital, Uthangarai. It is pertinent to point out that it was a case registered against the detenu under Section 4(1) (i) read with 4(1)(A) of the Tamil Nadu Prohibition Act for selling arrack, which contains poisonous substance. In order to prove the same, no documentary proof was filed. If really the complainant was sent to the hospital for treatment, atleast some documents should have been placed in order to establish the fact before the Detaining Authority. 8. Apart from that, once it was claimed by the police that the contrabands were recovered on 21.11.2009, the same has to be sent to the Court immediately, but the same was sent to the concerned Court after a period of three days. The said delay, in the ordinary course, would cause prejudice to the interest of the detenu. Under such circumstances, an explanation has to be called for from the sponsoring Authority as to how it has happened, but not done so. 9. Apart from the above, in the instant case, an application was pending before the District Sessions Court, Krishnagiri during relevant time and no orders were passed, but the Authority has stated that there is a real possibility of detenu coming out on bail. It is only an apprehension, which was passed in the mind of the Authority. While the bail application was pending, the Authority cannot take a decision that there was a real possibility of detenu coming out on bail. The said decision was premature. Under such circumstances, the Court is of the considered opinion that all these grounds would be suffice to vitiate the detention order. 10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in S.C. No.54/2009 dated 01.12.2009. The detenu, namely, Gopi, who is now confined at Central Prison, Salem 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 ssa. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to the Government, Home, Prohibition and Excise Department, Chennai – 600 009. 2. The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Krishnagiri, Krishnagiri District. 3. The Inspector of Police, Singarapettai Police Station, Krishnagiri District. 4. The Superintendent, Central Prison, Salem. 5. The Joint Secretary to Government, Public (Law & Order) Fort St. George, Chennai-9. 6. The Public Prosecutor, High Court, Madras. H.C.P.No.2300 of 2009 PKB (CO) GSK 21.04.2010. https://hcservices.ecourts.gov.in/hcservices/