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2010 Supreme(Mad) 4665
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Chinnapaiyan
Versus
State of Tamil Nadu Rep. By its Secretary to Government & Another
H.C.P.No.1066 of 2010
Decided On : 28-10-2010
For the Petitioner:C.C. Chellappan, Advocate.
For the Respondents: Babu Muthu Meeran, Additional Public Prosecutor.
The detaining authority must apply its mind and address any discrepancies in the detention order to ensure the validity of the order.
Headnote:
Detention Order - Public Health and Public Order - The court set aside the detention order due to non-application of mind by the detaining authority in recording subjective satisfaction and failure to call for clarification on discrepancies in the order.
Fact of the Case:
The petitioner challenged an order detaining his brother under Act 14/82 for being a Bootlegger. The detaining authority recorded subjective satisfaction that the detenu's activities were prejudicial to public health and public order.
Finding of the Court:
The court found that the detaining authority did not apply its mind and failed to call for clarification on discrepancies in the order, leading to the order being set aside.
Issues: Discrepancies in the detention order, non-application of mind by the detaining authority.
Ratio Decidendi: The court held that the detaining authority's failure to address discrepancies and non-application of mind rendered the detention order infirm.
Final Decision: The habeas corpus petition was allowed, setting aside the detention order and directing the detenu to be set at liberty forthwith.
(M. CHOCKALINGAM, J.)
1. This petition challenges an order of the second respondent dated 4.6.2010, whereby the brother of the petitioner by name Mr.Ravi was ordered to be detained under Act 14/82 branding him as a Bootlegger.
2. All the materials available and in particular, the order under challenge, are perused. The Court heard the learned Counsel for the petitioner.
3. It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the said detenu was involved in four adverse cases namely (1) Cheyyar PEW PS Cr.No.547/2009 under Sec.4(1)(aa) TNP Act; (2) Cheyyar PEW Cr.No.173/2010 under Sec.4(1)(aa) TNP Act; (3) Cheyyar PEW Cr.No.1126/2009 under Sec.4(1)(aaa) r/w 4(1-A)(II) TNP Act @ 4(1)(aaa) TNP Act and (4) Cheyyar PEW Cr.No.96/2010 under Sec.4(1)(aa) TNP Act and also in a ground case registered by Cheyyar PEW in Crime No.459/2010 under Sec.4(1)(i) r/w 4(1-A)(ii) TNP Act for an occurrence that had taken place on 11.5.2010, and he was arrested on the same day and on scrutiny of the entire materials, the detaining authority namely the second respondent herein has made the order under challenge after recording subjective satisfaction that the activities of the detenu would be prejudicial to the maintenance of public health and public order.
4. Advancing arguments on behalf of the petitioner, the learned Counsel put forth the following grounds:
(i) The order came to be passed on 4.6.2010. No doubt, it was passed against Mr.Ravi, S/o. Elumalai. But, as could be seen from the detention order, though the name of the detenu is mentioned as Ravi, he is described as S/o. Munusamy. But his fathers name is Elumalai. Thus it would clearly be indicative of the non-application of mind.
(ii) Page No.3 para 3b) reads "Thereafter, they reached Prohibition Enforcement Wing Police Station, Cheyyar along with the accused Thiru.Mahendiran and seized case properties..." While the name of the detenu is Ravi, it is found as Mahendiran in the course of the order. It would also indicate the non-application of mind.
(iii) The property has actually been recovered, according to the Investigator, on 11.5.2010, and a requisition was also forwarded to the Judicial Magistrate, Cheyyar, on the very day as could be seen from page Nos.24 and 27. But the same was actually produced before the Court only on 12.5.2010, as could be evident from the available record. In such circumstances, the detaining authority should have called for a clarification, but failed to do so. It would also indicate the non-application of mind. Hence the order has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
6. As could be seen above, the detaining authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public health and public order, has made the order under challenge. Insofar as the detenus fathers name is concerned, according to the learned Additional Public Prosecutor, an errata was issued in that regard. Hence the first ground urged by the learned Counsel will not stand.
7. As regards the second ground, paragraph 3b) of the grounds of detention would indicate the accused name as Mahendiran, but the detenus name is Ravi. In such circumstances, a clarification should have been called for, but not done so. Hence the order has become infirm.
8. Insofar as the third ground, according to the department, he was arrested on 11.5.2010, and the contraband was seized. A requisition was forwarded to the Judicial Magistrate, Cheyyar, on the same day. But it is evident from the available records that the property seized was actually placed before the Court only on 12.5.2010. In such circumstances, the detaining authority should have called for a clarification, but not done so. It would also be indicative of the non-application of mind on his part.
