Allowed

Prabharan v. the State Rep. by

Madras HC2 Apr 2019HCP/61/2019

Case brief

AI extract

What is this about?

A habeas corpus petition seeking the release of a detenue named Senbagam, who was detained under the Tamil Nadu Act 14 of 1982 for being a bootlegger. The petitioner highlighted discrepancies in the detention order regarding arrest and remand dates, alleging non-application of mind by the detaining authority.

What did the court decide?

The detention order dated 18.12.2018 is set aside and the detenue, Senbagam, is directed to be released forthwith.

Prabharan Vs the State Rep. by — Pension and Retirement Benefits | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 02.04.2019

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CORAM

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THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN

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AND

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THE HON'BLE MR.JUSTICE M. NIRMAL KUMAR

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H.C.P.NO.61 of 2019

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Prabaharan

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... Petitioner /Brother of the detenue

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The State of Tamil Nadu rep.by its

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Secretary to Government (Home)

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Prohibition & Excise Department, Secretariat

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Fort St.George, Chennai 600 009.

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The District Collector and District Magistrate Kancheepuram District, Kancheepuram. ... Respondents

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Prayer : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus to call for the entire records leading to the detention order in Memo No.BCDFGISSSV/102/2018 dated 18.12.2018 passed by the second respondent under the Tamil Nadu Act 14 of 1982 and quash the same and direct the respondents to produce the detenue Senbagam W/o Mathiyazhagan now confined in Central Prison (Special Prison for Women) , Puzhal, Chennai, directing the person or body of the detenu before this Honourable Court and thereafter set her at liberty.

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For Petitioner : Dr.S.Manoharan

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For Respondents : Mr.C.Iyyapparaj, Additional Public Prosecutor

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O R D E R

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(Order of the Court was made by M.SATHYANARAYANAN, J.)

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Petitioner is the brother of the detenu. Challenging the legality of the impugned order of detention dated 18.12.2018 passed by the second respondent, in exercise of the powers contemplated under Section 3(1) and 3(2) of the Tamil Nadu Prevention of dangerous activities of Boot leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982), by branding the detenue as a "Bootlegger", the present habeas corpus petition is filed. A perusal of the

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https://hcservices.ecourts.gov.in/hcservices/

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detention order dated 18.12.2018 would disclose that the detenu came to adverse notice in the following three cases.

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Sl No .	Name of the Police station and Crime No.	Section of law
1	Chunambedu Police Station Crime No.335 of 2017	4(1)(a), 4(1-A) of Tamil Nadu Prohibition Act read with Section 6&11 of the Tamil Nadu Rectified Spirit Rules, 2000.
2	Chunambedu Police Station Crime No.346 of 2018	4(1)(a), 4(1-A) of Tamil Nadu Prohibition Act read with Section 6&11 of the Tamil Nadu Rectified Spirit Rules, 2000.
3	Prohibition Enforcement Wing, Madurantakam Crime No.412 of 2018	4(1)(a), 4(1-A) of Tamil Nadu Prohibition Act read with Section 6&11 of the Tamil Nadu Rectified Spirit Rules, 2000.

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It is averred in the Grounds of Detention dated 18.12.2018 that on 26.11.2018 at about 10.30 Hrs, while conducting prohibition raid, the Inspector of Police, Chunambedu Police Station along with the police party in Thamaraikenikulam village, found a female ex-convict prohibition offender sitting suspiciously. On seeing the police party, she had tried to flee away from that place, but she was apprehended and she disclosed her name as Senbagam. Her house was also searched and the police party found three white coloured plastic cans each having a capacity of 35 litres totally containing 105 litres of diluted rectified spirit and it emanated bad odour and caused irritation of the eyes. The police party also found that the detenue was in possession of the diluted rectified spirit without any prior permission from Government. Thereafter, the recovery and arrest was made under the cover of mahazar. Thereafter, the detenue was brought to the station along with the seized properties by noon 12:00 Hours and Crime No.446 of 2018 was registered by Chunambedu Police Station under Section 4(1)(aaa), 4(1-A) of Tamil Nadu Prohibition Act read with Section 6&11 of the Tamil Nadu Rectified Spirit Rules, 2000 (ground case). Later on, the detenue was produced before the Judicial Magistrate, Madurantakam on 10.12.2018 in connection with the said case (ground case) and she was remanded to judicial custody till 26.11.2018. The seized properties were also subjected to chemical analysis and it disclosed that the seized liquid contains "Atropine", which is a poisonous substance. The Detaining Authority, on consideration and application of mind to

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https://hcservices.ecourts.gov.in/hcservices/

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the materials placed, found that the acts of the detenue are prejudicial to the maintenance of public peace and order and had derived at the subjective satisfaction and clamped the impugned order of detention, branded her as

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a ''Bootlegger'' and detained her under the Tamil Nadu Act 14 of 1982 and challenging the legality of the same, the present habeas corpus petition is filed.

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The learned counsel appearing on behalf of the petitioner draws the attention of this Court to paragraph No.3 of the grounds of detention and would submit that admittedly the detenue was arrested at 10:45 Hrs on 26.11.2018 and thereafter, the detenue along with the contraband was brought to the police station at about 12:00 Hrs and a case in Crime No.446 of 2018 was registered, whereas, in the seizure mahazar, having the time at 10:45 Hours the Crime Number is available and in the light of the said discrepancy, the sponsoring authority ought to have sought clarification regarding the said aspect and admittedly it was not done so, which exhibits the non application of the mind on the part of the detaining authority, which vitiates the impugned order of detention and hence prays for quashment of the same.

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Learned counsel for the petitioner further pointed out , as per the paragrph No.3 of the detention order, the detenue was produced before the Judicial Magistrate, Madurantakam on 10.12.2018 and was ordered to be remanded to judicial custody on 26.11.2018. There also a grave mistake has occurred for the reason that she was produced before the Judicial Magistrate on 10.12.2018 and her remand period was till 26.11.2018 and in the light of both the discrepancies, the detaining authority ought to have sought clarification from the sponsoring authority and since it was not done, non application of the mind on the part of the detaining authority, which vitiates the impugned order of detention and hence the same warrants interference.

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Per contra, Mr.C.Iyyappa Raj, learned Additional Public Prosecutor appearing for the State would submit that the detaining authority, after due and proper application of mind has rightly clamped the order of detention and prays for dismissal of this petition.

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This Court has considered the rival submissions and also perused the materials placed before it.

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As rightly pointed out by the learned counsel for the petitioner, admittedly prior to the registration of FIR, the contraband was seized and curiously crime number was mentioned in the seizure mahazar and that apart, the detenue was arrested

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https://hcservices.ecourts.gov.in/hcservices/

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and produced before the Judicial Magistrate, Madurantakam on 26.11.2018 and was remanded to judicial custody till 10.12.2018, whereas in sub para (3) of the detention order, it was stated otherwise. In the light of the said factual discrepancies, the detaining authority ought to have sought for clarification from the sponsoring authority and admittedly it was not done, which exhibits the non application of mind on the part of the detaining authority and the same would vitiate the order of detention.

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In the result, the Habeas Corpus Petition is allowed and the detention order passed by the 2^nd respondent dated 18.12.2018 in Memo No.BCDFGISSSV/102/2018 is hereby set aside. The detenue, viz., Senbagam, W/o Mathiazhagan, aged about 40 years, who is now confined in the Central Prison (Special Prison for Women), Puzhal, Chennai is directed to be released forthwith unless her presence [or] custody [or] detention is required in connection with any other case/proceedings.

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Sd/-
Assistant Registrar(CS-III)
//True copy//
Sub Assistant Registrar
KST
To
1. The Secretary to Government (Home)
Prohibition & Excise Department, Secretariat
Fort St.George, Chennai 600 009.
2. The District Collector and District Magistrate
Kancheepuram District, Kancheepuram.
3. The Superintendent, Central Prison
(Special Prison for Women)
Puzhal, Chennai 600 066.
4. The Joint Secretary to Government
Public (Law & Order)
Fort St.George, Chennai 600 009.
5. The Publci Prosecutor, High Court, Madras.
H.C.P.No.61 of 2019
RSI(CO)
GMY(30/05/2019)

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https://hcservices.ecourts.gov.in/hcservices/

Prabharan v. the State Rep. by

Case brief

What is this about?

What did the court decide?

Prabharan v. the State Rep. by

Case brief

What is this about?

What did the court decide?

What the court decided

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