IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.2.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1645 of 2007 Gundumani @ Vedagiri .. Petitioner Vs. 1. The State of Tamilnadu rep. by its Secretary to Government Prohibition & Excise Department Fort St.George, Chennai-9. 2. The District Collector and District Magistrate Kancheepuram District Kancheepuram. 3. The Superintendent of Central Prison Central Prison, Puzhal Chennai – 600 066. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Mr.S.Palanikumar For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R (Order of the Court was made by P.D.DINAKARAN,J.) The second respondent herein clamped an order of detention as against the detenu/petitioner, as the said authority arrived at the subjective satisfaction that the said detenu is a Bootlegger and he has to be detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous https://hcservices.ecourts.gov.in/hcservices/ Activities of Bootleggers, Drug Offenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). 2.1. The order of detention dated 28.10.2007 came to be passed by the second respondent on the basis of the ground case said to have taken place on 26.9.2007 based on which Crime No.264 of 2007 on the file of Sadras Police Station for the offences punishable under Sections 4(1)(aaa), 4(1-A), 4(1)(i) of the Tamil Nadu Prohibition Act read with Rules 6 and 11 of Rectified Spirit Rules, 2000 was registered. On 26.9.2007, when the Inspector of Police, Thirukalukundram Circle along with his police party conducted prohibition raid at Nallathur Palar River Bund, they found the detenu selling arrack from a mud pot concealed under the ground. On seeing the police party, the detenu tried to escape, but he was apprehended. The mud pot concealed was found to contain 105 litres of diluted rectified spirit with poisonous odour. The contraband was seized. The samples were sent for chemical analysis and report reveals that the sample of diluted rectified spirit was mixed with 8.3%mg of Atropine per 100 ml; and that atropine is a poisonous alkaloid and consumption of the same would endanger life. The detenu was arrested and he was remanded. 2.2. Apart from the above, the detaining authority also took note of seven adverse cases pending against the detenu, viz., Crime Nos.171, 180 and 252 of 2006, 25, 183, 209 and 261 of 2007 on the file of Sadras Police Station for the offences punishable under Sections Sections 4(1)(aaa), 4(1-A), 4(1)(a), 4(1)(i) of the Tamil Nadu Prohibition Act read with Rules 6 and 11 of Rectified Spirit Rules, 2000. 2.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order and public health, passed the impugned order. 3. Challenging the said detention, the detenu himself has preferred this Habeas Corpus Petition seeking a writ of habeas corpus to call for the records relating to the detention order in BDFGISSV No.72/2007, dated 28.10.2007 passed by the second respondent, to quash the same and to direct the respondent to https://hcservices.ecourts.gov.in/hcservices/ produce him, now confined in the Central Prison, Puzhal, Chennai, before this Court and to set him at liberty 4. Heard the learned counsel for the petitioner and Mr.N.R.Elango, learned Additional Public Prosecutor for the respondents. 5. The main contention of the learned counsel for the petitioner is that even though in the first information report with reference to the ground case, viz., Crime No.264 of 2007, it has been stated that one big mud pot concealed under the ground containing illicit arrack was seized from the detenu, who was sitting at Nallathur Palar river bund and selling the arrack, the Head Constable, who was a member of the police party which conducted prohibition raid, in his statement, which was relied upon by the detaining authority while passing the order of detention, stated that the detenu was found sitting with three mud pots at Nallathur Palar river bund, and this discrepancy as to the quantity of contraband seized was not considered by the detaining authority while passing the order of detention and the same would amount to non-application of mind on the part of the detaining authority. 6. A perusal of the first information report with reference to the ground case, viz., Crime No.264 of 2007 found at pages 67-69 of the booklet, depicts that one big mud pot concealed under the ground containing illicit arrack was seized from the detenu, who was sitting and selling the arrack at Nallathur Palar river bund. Whereas in the statement of the Head Constable, who was a member of the police party, found at page 77 of the booklet, it has been stated that the detenu was found sitting with three mud pots at Nallathur Palar river bund. The discrepancy as to the quantity of contraband seized is apparent on the face of the records, however the detaining authority has not considered the said vital aspect of the case, and the same, in our considered opinion, would amount to non application of mind on the part of the detaining authority. For the reason aforesaid, the impugned order of detention is vitiated and as such, the same is liable to be set aside and accordingly, the same is set aside. This petition is allowed. The order of detention dated 28.10.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his https://hcservices.ecourts.gov.in/hcservices/ presence is required connection with in any other crime. No costs. Sasi Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To: 1. The Secretary to Government State of Tamilnadu Prohibition and Excise Department Fort St.George, Chennai-9. 2. The District Collector and District Magistrate Kancheepuram District Kancheepuram. 3. The Superintendent of Central Prison Central Prison, Puzhal Chennai – 600 066. 4. The Public Prosecutor High Court, Madras. 5.The Joint Secretary to Government, Public (Law and Order Department) Fort St. George, Chennai-9. • One cc to Mr. R. Palani Kumar, Advocate sR 6766 MDR (co) sg 19/2/08 H.C.P.No.1645 of 2007 6.2.2008 https://hcservices.ecourts.gov.in/hcservices/