IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 13.09.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN H.C.P. No.846 of 2010 C. Prabhu ... Petitioner Vs. 1. The State, rep. by the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2. The District Collector and District Magistrate, Kanchipuram District, Kanchipuram. ` ... 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 detenu Tmt. Kamatchi, wife of Ganesan, aged 55 years, who is now detained in Special Prison for Women, Puzhal, Chennai – 66 in pursuance of the order passed by the second respondent on 17.4.2010 in BDFGISSV No.20/2010 before this Court, call for the records, set aside the order and set the detenue at liberty forthwith. For Petitioner : Mr. S. Swamidoss Manokaran For Respondents : Mr. Babu Muthumeeran Additional Public Prosecutor O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) This petition is brought forth by the son of the detenue challenging the order of the second respondent in BDFGISSV No.20/2010 dated 17.4.2010, whereby Kamatchi was ordered to be detained as a Bootlegger under the provisions of the Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/ 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 detenue is involved in six adverse cases viz. (i) Madurantakam Police Station Crime No.243 of 2009 for the offences under Sections 4(1)(i), 4(1)(a) of TNP Act read with Sections 6 & 11 of RS Rules, 2000; (ii) Madurantakam Police Station Crime No.373 of 2009 for the offences under Sections 4(1)(i), 4(1)(aa), 4(1-A) of TNP Act read with Sections 6 & 11 of RS Rules, 2000 @ Sections 4(1)(i) 4(1)(aa) of TNP Act read with Sections 6 & 11 of RS Rules, 2000; (iii) Madurantakam PEW Crime No.835 of 2009 for the offences under Sections 4(1)(i), 4 (1-A) of TNP Act read with Sections 6 & 11 of RS Rules, 2000 @ Sections 4(1)(i) 4(1)(a) TNP Act read with Sections 6 & 11 of RS Rules, 2000 (iv) Madurantakam PEW Crime No.1186 of 2009 for the offences under Sections 4(1)(aaa) 4(1-A) of TNP Act read with Sections 6 & 11 of RS Rules, 2000 @ Section 4(1)(aaa) of TNP Act read with Sections 6 & 11 of RS Rules, 2000; (v) Madurantakam Police Station Crime No.863 of 2009 for the offences under Sections 4(1)(i) 4(1-A) of TNP Act read with Sections 6 & 11 of RS Rules, 2000 @ Sections 4(1)(i) 4(1)(a) of TNP Act read with Sections 6 & 11 of RS Rules, 2000 and (vI) Madurantakam Police Station Crime No.135 of 2010 for the offences under Sections 4(1)(i) 4(1)(aaa) 4(1-A) of TNP Act read with Sections 6 & 11 of RS Rules, 2000 and the ground case in Crime No.231 of 2010 registered by Madurantakam Police station for the offences under Sections 4(1)(i), 4(1)(aaa), 4(1-A) of the Tamil Nadu Prohibition Act read with Sections 6 & 11 of RS Rules, 2000 for the incident that had taken place on 22.3.2010 and the detenue was arrested and remanded to judicial custody on the same day, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenue were prejudicial to the maintenance of public order, which is the subject matter of challenge before this Court. 4. Inter-alia learned counsel would urge in his sincere attempt of assailing the order that in the ground case, the detenue has filed a petition before the Principal District and Sessions Court, Chengalpattu on 29.3.2010 in Crl.M.P. No.1150 of 2010 and the same was dismissed on 16.4.2010 and thus, there was no bail application pending on the date when the order of detention came to the passed on the next day viz. 17.4.2010. The Authority has not even stated that there was a real or imminent possibility or there was a likelihood of the detenue coming out on bail. On the contrary, the Authority has observed that she would be prevented from indulging in such further activities in future. Thus, the said observation is without any basis, material much less cogent material, which vitiates the detention order. https://hcservices.ecourts.gov.in/hcservices/ 5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenue as a Bootlegger, on the strength of the materials placed before him pertaining to six adverse cases and one ground case as referred to above, and has recorded the subjective satisfaction that the activities of the detenue were prejudicial to the maintenance of public order. 7. What are all stated is that the detenue should be prevented from indulging in such activities in future. At this juncture, it is pertinent to point out that in the ground case, the detenue has filed a petition before the Principal District and Sessions Court, Chengalpattu on 29.3.2010 in Crl.M.P. No.1150 of 2010 and the same was dismissed on 16.4.2010 and thus, there was no bail application pending on the date when the order of detention came to the passed on the next day viz. 17.4.2010. When the detenue was actually in custody, the question of real or imminent possibility of detenue coming out on bail does not arise. Without even recording the same, the Authority has observed that the detenue should be prevented from indulging in such activities which are prejudicial to the maintenance of public order, which would clearly indicate the fact of non application of mind. 8. A Full Bench of this Court had an occasion to consider such a situation in the decision reported in the case of KALAISELVI v. THE STATE OF TAMIL NADU (2007(5) CTC 657). In the said case, when the Authorities have not even stated whether the possibility is real or imminent or likely, the Full Bench was of the opinion that the detention order was vitiated. This Court is of the considered opinion that this decision has got full application in the factual matrix of the case. 9. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in BDFGISSV No.20/2010 dated 17.4.2010. The detenue, namely, Kamatchi, who is now confined at Special Prison for Women, Puzhal, Chennai is directed to be set at liberty forthwith unless her custody/detention is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssa. To 1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2. The District Collector and District Magistrate, Kanchipuram District, Kanchipuram. 3. The Superintendent, Special Prison for Women Puzhal, Chennai. 4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 5. The Public Prosecutor, High Court, Madras. H.C.P. No.846 of 2010 JSV(CO) sra 23/09/2010 https://hcservices.ecourts.gov.in/hcservices/