A. Thirupathi v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.08.2009 CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAAND THE HONOURABLE MR.JUSTICE V.DHANAPALANHabeas Corpus Petition No.960 of 2009A. Thirupathi ..PetitionerVs.1. State of Tamil Nadu rep. by its Secretary to Government Prohibition & Excise Department Fort St. George, Chennai-9.2. The District Collector and District Magistrate Villupuram District Villupuram. ..RespondentsPetition under Article 226 of the Constitution of India for theissuance of a Writ of Habeas Corpus to call for the records relatingto the impugned order of detention passed by the 2nd respondent inC2/19150/2009 dated 11.06.2009, set aside the same and consequentlydirect the respondents to produce the detenu Koni Oosi @ Ayyakannu,aged 52 years, father of the petitioner, now confined at CentralPrison, Cuddalore before this Hon'ble Court and set him at libertyforthwith.For Petitioner :Mr.S.SaravanakumarFor Respondents : Mr.V.R.BalasubramanianAddl. Public ProsecutorO R D E R(Made by F.M.IBRAHIM KALIFULLA,J.)The petitioner is the son of the detenu. The challenge in thishabeas corpus petition is to the order of detention dated 11.06.2009passed by the second respondent branding the detenu viz., Koni Oosi @Ayyakannu, son of Pallikondan as a "Bootlegger" under sub section (1)of Section 3 of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral https://hcservices.ecourts.gov.in/hcservices/ Traffic Offenders, Sand Offenders, Slum-grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982).2. There were as many as five adverse cases against the detenuapart from the ground case. In all the adverse cases, the detenu wascharged under Section 4(1)(a) of the Tamilnadu Prohibition Act, 1937and all the cases are pending trial. In the ground case, it isalleged that on 26.05.2009 at 10.00 hours when the Inspector ofPolice, Prohibition Enforcement Wing, Tirukoilur conducted aprohibition raid at Thiyagarajapuram Village based on the informationreceived by him. He caught the detenu aged about 52 years red-handedbehind his house with a green colour plastic pot when he was foundpouring some kind of liquid in a plastic tumbler and supplying it topersons by receiving money. The police party took the detenu undercustody while others escaped. They have also seized one green colourplastic pot (15 litres capacity) with 10 litres of arrack withpoisonous odor, one green colour plastic tumbler and sale proceeds ofRs.50/-. The smell of the arrack was said to have irritated the eyesand also created vomiting sensation and poisonous odor. Since thedetenu was not holding any permit or licence, it was presumed that hewas selling illicit arrack. The detenu was said to have beenarrested at 10.00 hours after intimating him of the cause for hisarrest and the contrabands were also seized under a cover of mahazarin the presence of witnesses. A case in Crime No.782 of 2009 wassaid to have been registered under Section 4(1)(aaa) and 4(1)(i) readwith 4(1-A) of the Tamil Nadu Prohibition Act, 1937. The detenu wasproduced before the learned Magistrate on 26.05.2009 and he wasremanded to judicial custody till 09.06.2009. The said remand wassubsequently extended upto 23.06.2009. The detenu was lodged in theCentral Prison, Cuddalore. The three bottles out of six samplebottles were said to have been sent for chemical analysis along withthe Judicial Magistrate's letter dated 27.05.2009 to the AssistantDirector, Regional Forensic Science Laboratory, Villupuram and intheir letter dated 29.05.2009, the said laboratory authoritiesinformed that the samples found to contain ethyl alcohols, acids,easters, higher alcohol, aldehydes and atropine and that the arrackwas mixed with atropine, which is a poisonous substance. It is inthe abovesaid background, the impugned order of detention came to beclamped on the detenu.3. Mr.S.Saravanakumar, learned counsel appearing for thepetitioner raised two contentions. In the first place, he contendedthat in paragraph 3 of the detention order, the detaining authoritymade a specific statement to the effect that the detenu was producedbefore the learned Judicial Magistrate, Sankarapuram on 26.05.2009along with the seized properties and remand report and that thelearned Magistrate ordered his remand for judicial custody till09.06.2009. By pointing out to the said statement and while drawingour attention to the remand report found at page 88 of the booklet,the learned counsel contended that the remand report would disclose https://hcservices.ecourts.gov.in/hcservices/ that the detenu was produced before the learned Magistrate on26.05.2009 at 20.00 hours and that the learned Magistrate remandedhim to judicial custody till 09.06.2009. Learned counsel also drewour attention to Form 95 found at Page 90 of the booklet, which wasadmittedly received by the learned Magistrate, Sankarapuram on27.05.2009 in C.P.No.45 of 2009. The said document is the proof forhaving produced the seized materials, which were said to have beenseized along with the detenu on 26.05.2009 at 10.00 hours. Bypointing out the above referred to material documents, the learnedcounsel contended that when as per the remand report, the seizedmaterials were not placed before the learned Magistrate and theendorsement found in Form 95 that the seized materials were receivedby the learned Magistrate only on the next day i.e. on 27.05.2009,the reference made by the detaining authority in the detention orderto the effect that the detenu was produced before the learnedMagistrate along with the seized properties was incorrect statementand that the said factor by itself disclosed that there was total nonapplication of mind on the part of the detaining authority whilepassing the impugned order of detention.4. That apart, the learned counsel for the petitioner alsocontended that the detenu made a representation on 17.06.2009 andthere was considerable delay in disposing of the said representation.In the pro-forma placed before us by the learned Additional PublicProsecutor, we find that the representation dated 17.06.2009 wasplaced before the Hon'ble Minister for Law, who dealt with the sameon 01.07.2009. Thereafter, the rejection letter was said to havebeen prepared only on 10.07.2009. Even by taking into account04.07.2009 and 05.07.2009, which are Saturday and Sunday, we findthere was six days gap in the passing of the rejection order dated10.07.2009 after the Hon'ble Law Minister passed his orders on01.07.2009. 5. Considering the above factors and after hearing the learnedAdditional Public Prosecutor, we are convinced that on the ground ofnon application of mind as well as on the ground of undue delay inthe disposal of the representation, the petition deserves to beallowed. As rightly pointed out by the learned counsel for thepetitioner that in the remand report, there is no reference to theproduction of the seized materials along with the detenu on26.05.2009. Form 95 on the other hand disclosed that the seizedmaterials were placed before the learned Magistrate only on27.05.2009. In the said circumstances, the statement of thedetaining authority that the detenu was produced before the learnedMagistrate on 26.05.2009 along with the seized materials wasadmittedly a wrong statement not inconsonance with what the recordsdisclose. When the arrest of the detenu was on the specific chargeof his involvement in the preparation and sale of illicit arrackcontaining poisonous substance of atropine, the seized materials arevery relevant material objects, which would support the ultimate case https://hcservices.ecourts.gov.in/hcservices/ of the prosecution as against the detenu. When that be so, thefailure to note the dates with reference to the production of thedetenu and the production of the seized materials before the learnedMagistrate would have far reaching consequences in the matter ofpassing of the order of detention. In the said circumstances, thefailure on the part of the detaining authority in not making properreference to the relevant documents relating to the production of thedetenu before the Magistrate and production of the seized materialswould seriously impair the impugned order of detention, as that wouldirresistibly show the total non application of mind on the part ofthe detaining authority over the relevant documents, which were thebasis for passing the impugned order of detention. That apart, theunexplained delay as between 01.07.2009 and 10.07.2009 would alsohave far reaching consequences in the matter of the disposal of thepetitioner's representation.6. Having regard to the above conclusions, we are convinced thatthe impugned order of detention cannot be sustained. The habeascorpus petition, therefore, stands allowed and the impugned order ofdetention is set aside. The detenu, viz., Koni Oosi @ Ayyakannu, sonof Pallikondan, is directed to be set at liberty forthwith, unless heis required in connection with any other case or cause.Sd/Deputy Registrar/true copy/Sub Asst.RegistrarATRTo1. THE SECRETARY TO GOVERNMENT STATE OF TAMIL NADU PROHIBITION AND EXCISE DEPARTMENT CHENNAI -092. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, VILLUPURAM DISTRICT, VILLUPURAM.3. THE SUPERINTENDENT CENTRAL PRISON, CUDDALORE.4. THE JOINT SECRETARY PUBLIC (LAW & ORDER) DEPARTMENT, CHENNAI-9. https://hcservices.ecourts.gov.in/hcservices/

5. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS.+ 1 c.c. to Mr.S. Saravanakumar, Advocate. S.R.No.38225.H.C.P.No.960 of 2009KA (CO)GSK 29.08.2009.