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.100 OF 2008 Thamarai Selvi .. Petitioner Vs. 1.State of Tamil Nadu, rep. by its Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai-600 009. 2.The District Collector and District Magistrate, Tiruvannamalai District, Tiruvannamalai. .. 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 to call for the entire records related to 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.05/2008-C2 and quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely Elumalai before the court and set him at liberty. For Petitioner : Mr.C.C.Chellappan 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 second respondent, dated https://hcservices.ecourts.gov.in/hcservices/ 11.01.2008 made in D.O.No.05/2008-C2, terming the petitioner's husband Elumalai as Bootlegger and detained him under the Tamil Nadu Act 14 of 1982. 2.The affidavit filed in support of the petition and the order under challenge are perused. The court has also looked into the grounds of detention. The court heard the learned counsel for the petitioner and also the learned counsel for the respondents on the contentions. 3.The second respondent herein, who was the Detaining Authority, on scrutiny of the materials placed by the Sponsoring Authority, pertaining to 6 adverse cases in Crime Nos.410 and 245 of 2007 registered by Tiruvannamalai PEW, Crime Nos.74, 365, 608 and 772 of 2007 registered by Chengam Police station and also one ground case in Crime No.1161 of 2007, dated 14.12.2007 under the provisions of Tamil Nadu Prohibition Act, has recorded subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and health and hence he was to be termed as Bootlegger and further, in order to prevent him from indulging in such activities in future, he should be detained under the provisions of the Tamil Nadu Act 14 of 1982 and hence, he made the order of detention, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the petitioner, in his sincere attempt of assailing the order under challenge, the learned counsel has made the following submissions: Firstly, the order came to be passed by the Detaining Authority on 11.01.2008, terming the petitioner's husband as Bootlegger. According to the Sponsoring Authority, the case came to be registered in Crime No.1161 of 2007 on 14.12.2007 pursuant to an incident, in which the detenu was found in possession of illicit arrack, which was also seized on the very day. A requisition was also made to the Court concerned on the very day on 14.12.2007 for sending the samples taken from the illicit arrack, which was seized, for the purpose of analysis by the Forensic Department. The detenu was also produced on the very day. A requisition, which was placed before the court, would reveal that the sample that was taken from the illicit arrack which was seized, was deposited before the court on that day. But page No.28 of the booklet would clearly reveal that Form 95 for the production of the deposited samples was made only on 17.12.2007. Thus, it would be quite clear that on the day when the requisition was made on 14.12.2007, the samples were not at all deposited. This would go to the root of the matter, but no clarification was sought for. The Detaining Authority has also relied upon the Doctor's certificate issued to the effect that the poisonous substance was actually contained and it will be injurious to the health and even it might cause death. It was also placed by the Sponsoring Authority and also relied on by the Detaining Authority. But, when a representation https://hcservices.ecourts.gov.in/hcservices/ was made, in which the detenu has asked for the copy of the said report, the same was not furnished and thus, he was prevented from making effective representation. Further, the case was originally registered under Sections 4(1)(i) r/w 4(1-A)(ii) of TNP Act, but subsequently it was altered to Sections 4(1)(i), 4(1)(aaa) r/w 4(1-A) (ii) of TNP Act. In the course of the representation, a requisition was also made for furnishing the copy of the amended F.I.R., but it was also not given and thus, the detenu was prevented from making effective representation and hence the order under challenge has got to be set aside. 5.The court heard the learned Additional Public Prosecutor on the above contentions. 6.The Court, after looking into the materials available, was of the considered opinion that the order under challenge has got to be quashed. As could be seen above, the order under challenge came to be passed on 11.1.2008, terming the detenu as Bootlegger, on the strength of the materials pertaining to 6 adverse cases and one ground case registered under the provisions of Tamil Nadu Prohibition Act. The ground case was registered in Crime No.1161 of 2007 on 14.12.2007. According to the Sponsoring Authority, the detenu was arrested and the illicit arrack and the other material objects were recovered on the very day. A requisition was also placed before the concerned Judicial Magistrate to send the samples for analysis, but they were actually deposited along with Form 95 only on 17.12.2007. Thus, it would be quite clear that on 14.12.2007, the samples were not at all deposited. Hence naturally, it should have raised a doubt in the mind of the Authority, but the Authority has not called for any clarification. 7.Further, as rightly pointed out by the learned counsel for the petitioner, a certificate was issued by the medical person, which was also placed by the Sponsoring Authority and was relied on by the Detaining Authority, a copy of which was asked for in the post- detention representation, dated 24.01.2008, but it was not issued. The non supply of the said certificate would be nothing, but the denial of valuable right of the detenu in making effective representation. Further, there was non supply of amended copy of F.I.R. As rightly pointed out by the learned counsel for the petitioner, the first part as to the non calling of necessary explanation or clarification would be indicative of non application of mind. The other two reasons would clearly indicate the denial of valuable right of the detenu in making effective representation, which in the opinion of the court, would be sufficient to set aside the order under challenge. https://hcservices.ecourts.gov.in/hcservices/ 8.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 Secretary to Government, State of Tamil Nadu, 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. 4.The joint secretary to the Government of Tamil nadu Public(Law and Order) Dept, High Court, Madras. 5.The Superintendent, Central prison, Vellore. 1 CC To Mr.C.C.Chellappan, Advocate, SR NO.30526. H.C.P.NO.100 OF 2008 bk(co) pmk/1.7.08. https://hcservices.ecourts.gov.in/hcservices/