IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.103 OF 2008 Poonkodi .. Petitioner Vs. 1.The Secretary to Government, Home Prohibition and Excise Department, Fort St.George, Chennai – 600 009. 2. The Commissioner of Police, Salem City, Salem .. 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 records of the second respondent order in CMPNo.30/B.L./Salem City/2007 dated 30.11.2007 and quash the same thereby directing the detenu Thiru Appovu, son of Sithan detained at Central Prison, Salem, to be produced before this Court and set him at liberty. For Petitioner : Mr.B.S.Ajeetha 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 passed in CMP.No.30/B.L./Salem City/2007 dated 30.11.2007 whereby one Appovu son of Sithan, the detenu was termed as 'Bootlegger' and detained under the provisions of Tamil Nadu Act 14 of 1982. 2. The affidavit filed in support of the petitioner is perused. The Court heard the learned counsel on either side. The order under challenge along with the grounds are also perused. https://hcservices.ecourts.gov.in/hcservices/ 3. Concededly, the order of detention came to be passed by the second respondent, Detaining Authority on the strength of the recommendation made by the Sponsoring Authority. The respondent, detaining authority has passed the order on scrutiny of the available materials in respect of two adverse cases namely Crime No.367/2007 registered for offence under Section 4(1)(a) of T.N.P. Act on the file of Kitchipalayam Police Station and Crime No.1003/2007 registered for offence under Section 4(1)(aa) of T.N.P.Act on the file of Kitchipalayam Police Station and also the ground case in Crime No.475/2007 registered for the offence under Section 4(1)(i) 4 (1)(aaa) of T.N.P. Act on the file of PEW, Salem City and other materials. The Detaining Authority after arriving at subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and health has termed the detenu as Bootlegger and 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, an order of detention was passed. The said order is the subject matter of challenge before this court. 4. Advancing arguments in support of the petitioner, learned counsel would submit that the order has been passed without any application of mind. According to the learned counsel for the petitioner in the ground case in Crime No.475/2007, the petitioner was arrested on 18.11.2007. At the time of arrest all Material Objects were seized from him. As per the requisition, the samples of the M.Os. were sent for analysis to Forensic Department and the opinion of the Chemical Analyst was received by the Court on 22.11.2007 but the expert opinion was received on 19.11.2007 i.e., even before the Chemical Analyst's report. Hence, a duty is cast upon the detaining authority to call for clarification but he failed to do so. Secondly, though a bail application was filed in the ground case, the detaining authority has pointed out in the order of detention that he was aware that no bail application has been filed by the detenu or on his behalf so far, but the real possibility of the detenu filing a bail application in near future cannot also be ruled out and that he was aware that if the detenu applies for bail, there is real possibility to be released on bail. Learned counsel further submits that a representation was made on 10.1.2008 which was not considered at all. He further submits that the petitioner was having acknowledgement to that effect also. Originally, a representation was made by the petitioner through the Legal Aid on 7.10.2007 and a reply has been received rejecting the same. But the detaining authority has not referred to the representation dated 10.1.2008. Hence, the non-consideration of the representation dated 10.1.2008 made by the petitioner was sufficient to set aside the order of detention. Learned counsel further submits that in the instant case, the detenu was arrested by the police in Crime No.475/2007 on 18.11.2007 and no one of the relatives of the detenu was informed about the arrest or the factum of arrest particulars thereon which is violative of settled principles of law. Hence, on that ground the order has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6.It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority along with the materials in respect of two adverse cases and one ground case as referred above, the detaining authority has passed the order of detention, terming the petitioner as Bootlegger after recording that his activities were prejudicial to the maintenance of public order and health. 7. In the instant case, as could be seen from the materials available, the arrest was made in the ground case on 18.11.2008 as the detenu was found in possession of illicit arrack and Crime No.475/2007 came to be registered. At this juncture, it has to be pointed out that a requisition was made for sending the sample for chemical analysis. Accordingly, a report was received on 22.11.2008 but the expert opinion was received on 19.11.2007 itself. Hence, there is discrepancy. Therefore, duty is cast upon the detaining authority to call for clarification when all these materials were placed before him by the sponsoring authority for scrutiny, but that was not done so. This would show the non-application of mind as rightly putforth by the learned counsel for the petitioner. So far as the second contention is concerned, paragraph 5 of the order under challenge it reads as follows: "I am aware that no bail application has been filed by him or on his behalf so far. But the real possibility of his filing a bail application in near future cannot also be ruled out. I am aware that if he applies for bail, there is a real possibility to be released on bail, because in similar cases, bail is granted by the same court or the higher court after efflux of certain time." A reading of the above would clearly reveal that it is a simple expression of statement what was passing in the mind of the authority. Even when bail application is filed before the Court of law, it cannot be stated that there is real possibility of the detenu coming out on bail. Therefore, that cannot support the case. So far as the third contention of the learned counsel for the petitioner is concerned, the law would mandate that immediately after the arrest, intimation should be given to any one of the relative of the detenu as to the factum of arrest, but in the instant case, the materials would go to show that intimation was given to one "Periyamma" who according to the department was the mother of the detenu but according to the petitioner, the detenu has no mother and she died long back and it is also referred to in the representation. Therefore, this would clearly show that intimation was not served upon either to the mother or to any close relatives of the detenu which is mandatory. Further, in so far as the last contention of the learned counsel for the petitioner as to the representation of the petitioner dated 10.1.2008 is concerned, no acknowledgement is placed before this Court to accept the contention but the Court is able to see some force in the argument of the learned counsel. Under these https://hcservices.ecourts.gov.in/hcservices/ circumstances, the Court is of the considered opinion that it is a case where the impugned order has got to be set aside. 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 vsi To 1. The Secretary to Government, Home Prohibition and Excise Department, Fort St.George, Chennai – 600 009. 2. The Commissioner of Police, Salem City, Salem 3.The Public Prosecutor, High Court, Madras. 4. The Superintendent, Central prison, Salem. 5. The Joint Secretary to Govt, Public (Law & order) Fort. St. George, Chennai. H.C.P.NO.103 OF 2008 scd [co] gkg/8.7 https://hcservices.ecourts.gov.in/hcservices/