IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.37 of 2008 Selvam .. Petitioner vs 1.The State of Tamilnadu Rep. By its Secretary to Government Prohibition & Excise Department Fort St. George Chennai 600 009. 2.The District Collector & District Magistrate Vellore District Vellore 9 .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to direct the respondents to produce the detenue Shanthi before this Court now confined at Special Prison for Women, at Vellore and set her at liberty and to call for the records pertaining to the order of detention passed in C3 DO No.109/2007 dated 1.12.2007 passed by the 2nd respondent and set aside the same. For Petitioner : Mr.T.Muruganandan for Mr.S.Sugendran For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) An order of detention made by the second respondent in C3 DO No.109/2007 dated 1.12.2007, is the subject matter of challenge in this petition for issuance of a writ of habeas corpus. https://hcservices.ecourts.gov.in/hcservices/ 2.The affidavit in support of the petition along with the order under challenge are perused. The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor for the State. 3.Consequent upon the recommendation made by the sponsoring authority that the detenue Santhi is involved in four cases in Joalrpet PS Crime Nos.636/06, 811/06, 769/07 and 952/07 all under the provisions of the Tamil Nadu Prohibition Act and in one ground case of Jolarpet PS Crime No.1098/2007, the particulars of which are given in detail in the impugned order, the detaining authority after looking into the materials available, was of the opinion that the activities of the detenue were prejudicial to the maintenance of the public order and public health, and she has got to be termed as a bootlegger, and apart from that, a necessity arose for passing an order of detention in order to prevent her from indulging in such activities in future, and hence, made the order. The same is the subject matter of challenge before this Court. 4.In his sincere attempt of assailing the order, the learned Counsel made the following submissions: (i) The order of detention was passed on 1.12.2007 on the strength of four adverse cases and one ground case. On arrest she was produced before the Judicial Magistrate concerned, and an bail application was filed and dismissed on 16.11.2007. Subsequent thereto, no bail application was filed. The detention order came to be passed on 1.12.2007. The authority has pointed out that the bail application filed by her, was dismissed. He would further add that there was all likelihood of the detenue coming out on bail; but, there was no material placed by the sponsoring authority or available in the hands of the detaining authority. However, he has taken that view without any material whatsoever. Thus, this was non-application of mind. (ii) When a copy of the translated version of the order of the Principal Sessions Judge, Vellore, made in Cr.M.P. No.9150/2007 whereby the request of the petitioner for bail was rejected, in Tamil was given to her, it was not found to be the translation of the English version of the order, but with all incorrect particulars; and that when such was the situation and those materials are placed, immediately, the detaining authority should have called for a clarification, but not done so. (iii) It was also reported before the Sessions Court by the prosecution that the papers were placed before the District Magistrate for invoking Act 14/82, and hence, the petition was not maintainable; that the said order of dismissal came to be passed on 16.11.2007; but, actually on that day, no papers or materials are placed before the detaining authority; that had the detaining authority applied his mind, he should not have passed such an order; that this would also speak of the non-application of mind, and hence, the order has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 5.The Court heard the learned Additional Public Prosecutor on all the above contentions. 6.The Court after looking into the materials available, is of the considered opinion that the order of the authority below has got to be quashed for the following reasons. 7.Firstly, on the strength of four adverse cases and one ground case all registered under the Tamilnadu Prohibition Act, the detenue was detained terming her as a bootlegger on 1.12.2007, by an order under challenge. The bail application was filed on 16.11.2007, and the same was dismissed. When the bail application came up for consideration by the Court of Sessions, Vellore, it was reported by the prosecution that materials were placed for initiation of proceedings before the District Magistrate, which would mean that the proceedings were initiated under Act 14/82; but, actually on that day, there were no papers placed or pending in the hands of the detaining authority. 8.Secondly, as far as the bail order was concerned, the copies of the order in English and also the translated version in Tamil were supplied to her; but, when they were compared, the Tamil version was not the exactly equivalent to the English version, and the particulars were found to be different. At that juncture, clarification should have been sought for, but, not done so. 9.Thirdly, when the bail application came up for consideration before the Court of Session on 16.11.2007, on objection the same was dismissed. When the detention order came to be passed on 1.12.2007, actually there was no bail application pending; but, the detaining authority has pointed out that though the bail application was dismissed on 16.11.2007, there was all possibility of the detenue coming out on bail by making another bail application. Thus, it would be quite clear that on the day when the orders were passed, no bail application was pending, and it was only an apprehension in the mind of the detaining authority without any basis or materials placed before him. It can be stated that it was simply a reproduction of a statement and even without any material whatsoever. All the above would speak of the non-application of mind by the detaining authority, and hence, the impugned order has got to be set aside. 10.Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenue is directed to be released forthwith unless her presence is required in connection with any other case. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsv/ To: 1.The Secretary to Government The State of Tamilnadu Prohibition & Excise Department Fort St. George Chennai 600 009. 2.The District Collector & District Magistrate Vellore District Vellore 9 3.The Public Prosecutor High Court, Madras. 4. The Special Prison for Women, Vellore. 5. The Joint Secretary to Govt. Public (Law & Order) Department, fort. St. George, Chennai.9 HCP No.37 of 2008 klt [co] gkg/24.6 https://hcservices.ecourts.gov.in/hcservices/