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2010 Supreme(Mad) 4656
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Raji
Versus
The State of Tamil Nadu & Another
H.C.P. No.1246 of 2010
Decided On : 28-10-2010
For the Petitioner:M. Sathish Kumar, Advocate.
For the Respondents: M. Babu Muthu Meeran, Additional Public Prosecutor.
Procedural irregularities and lack of proper clarification in the detention process can lead to the setting aside of a detention order.
Headnote:
Bootlegger - Challenge to Detention Order - Act 14 of 1982 - Tamil Nadu Prohibition Act, 1937, Sections 4(1)(aaa), 4(1-A), 4(1)(a), 6, 11, 468, 471, 420 - Summary: The court considered the detention order of the detenu under the provisions of Act 14 of 1982 and the Tamil Nadu Prohibition Act, 1937, focusing on the subjective satisfaction of the detaining authority and the legality of the grounds for detention.
Fact of the Case:
The wife of the detenu challenged the detention order of her husband, Paulraj, who was ordered to be detained as a Bootlegger under the provisions of Act 14 of 1982.
Finding of the Court:
The court found that the detention order was to be set aside due to procedural irregularities, including discrepancies in the timing of the arrest memo and the registration of the case, lack of clarification on analysis reports, and deficiencies in the arrest memo and special report.
Issues: The issues revolved around the legality of the detention order, procedural irregularities, and the subjective satisfaction of the detaining authority.
Ratio Decidendi: The court's decision was based on the procedural irregularities and lack of proper clarification in the detention process, leading to the setting aside of the detention order.
Final Decision: The Habeas Corpus Petition was allowed, setting aside the detention order passed by the second respondent in Memo No.118/BDFGISSV/2010 dated 18.6.2010, and the detenu, Paulraj, was directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case.
(Order of the Court was made by M. CHOCKALINGAM, J)
1. This petition is brought forth by the wife of the detenu, challenging the order of the second respondent in Memo No.118/BDFGISSV/2010 dated 18.6.2010, whereby the detenu Paulraj was ordered to be detained as a Bootlegger under the provisions of the Act 14 of 1982.
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 detenu is involved in three adverse cases viz. (i) Crime No.578 of 2003 registered by PEW, St. Thomas Mount Unit for the offence under Section 4(1) (aaa) and 4(1-A) of the Tamil Nadu Prohibition Act read with Sections 6 and 11 of RS Rules, 1959; (ii) Crime No.92 of 2007 registered by PEW, St. Thomas Mount Unit for the offence under Section 4(1)(a) Transporting, 4(1)(aaa), 4(1-A) of TNP Act read with Sections 468, 471 of the Indian Penal Code; (iii) Crime No.21 of 2008 registered by PEW, St. Thomas Mount Unit for the offence under Section 4(1)(i)(aaa) Transporting, 4 (1-A) of the Tamil Nadu Prohibition Act, 1937 and one ground case in Crime No.176 of 2010 registered by PEW, St. Thomas Mount Unit for the offences under Sections 4(1) (aaa) Transport read with 4(1-A) of the Tamil Nadu Prohibition Act and Section 420 of the Indian Penal Code for the incident that had taken place on 2.6.2010 and the detenu was arrested on the very day, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and public health, which is the subject matter of challenge before this Court.
4. While advancing arguments on behalf of the petitioner, learned counsel would submit that as could be seen from F.I.R., which is found in page No.77 of the booklet, a case in Crime No.176 of 2010 was registered by P.E.W. St. Thomas Mount Unit on 2.6.2010 at 19.00 hours. But the arrest memo, as found in page No.88 of the booklet, contains Crime number, which was prepared at 15.00 hours. While the case was registered at 19.00 hours, the arrest memo, which was prepared at about 15.00 hours contains the crime number. A clarification should have been called for by the Detaining Authority, but he has failed to do so.
5. Learned counsel added further that after registration of the case, the sample was sent for analysis and report dated 11.6.2010 was received, as found in page No.101 of the booklet, stating that it contains poisonous substance. As found in page No.108 of the booklet, it would be evident that a Certificate was obtained from the Doctor and statement was received from him on 9.6.2010 itself even before the chemical analysis Certificate dated 11.6.2010 was received. A clarification should have been called for, but not done so.
6. Learned counsel added further, a special report did not contain the date. Learned counsel added further, insofar as arrest memo is concerned, it is stated that intimation was given by way of telegraphic message. It contains only copy of the receipt, but not copy of the message. Apart from this, it did not reveal as to whom it was sent, which would not satisfy the mandatory law. On these grounds, the detention order has got to be set aside.
7. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
8. As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenu as a Bootlegger, on the strength of the materials placed before him pertaining to three adverse cases and one ground case as referred to above and has recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and public h
