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2003 DIGILAW 2117 (MAD)

Elumalai v. State of Tamil Nadu & Another

2003-12-23

M.THANIKACHALAM, P.D.DINAKARAN

body2003
Judgment :- P.D.Dinakaran, J. The order of detention dated 27.10.2003 passed by the second respondent herein, under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, terming the detenue Elumalai, the petitioner herein, as a bootlegger, is challenged in this petition. 2. As per the impugned order of detention, the petitioner has been detained based on the ground case said to have taken place on 11.9.2003 at about 12.30 hours, within the jurisdiction of Tiruvannamalai Police Station. It is alleged that the petitioner, on that day, was found to be selling two tumblers of I.D. arrack for Rs.20/- to one Venkatesan. A sample of the said I.D. arrack was sent for chemical examination. On chemical examination, it was found that the said I.D. arrack was containing 6.4 mg of atropine, which would cause danger to the person consumed, if he is not given immediate treatment. 3. That apart, there are seven adverse cases against the petitioner, viz. five cases on the file of Mangalam Police Station in Crime Nos.90/2002, 685/2002, 47/2003, 262/2003 and 275/2003 for the offence punishable under Section 4(1)(aaa), 4(1)(i), 4(1)(i), 4(1)(a) and 4(1)(a) of Tamil Nadu Prohibition Act respectively and two cases on the file of Tiruvannamalai Police Station for the offence punishable under Section 4(1)(aa) of the Tamil Nadu Prohibition Act. 4.1. The learned counsel for the petitioner contends that the wife of the petitioner, challenging the impugned order of detention, made a representation on 15.9.2003, but the same was not considered in the impugned order of detention. He also invited our attention to the unexplained delay on the part of the sponsoring authority, while sending the remarks on the representation made by the petitioner on 7.11.2003. Even though the said representation was received by the detaining authority on 13.11.2003 and remarks were called on 14.11.2003, which was received by the sponsoring authority on 17.11.2003, the report of the sponsoring authority was received only on 24.11.2003. 4.2. That apart, he also invited my attention to the unexplained delay in communicating the order passed by the Minister concerned on the representation of the petitioner, in the light of the remarks furnished by the sponsoring authority, viz. the order was passed by the Minister concerned on 27.11.2003, but it was communicated only on 4.12.2003. 5. 4.2. That apart, he also invited my attention to the unexplained delay in communicating the order passed by the Minister concerned on the representation of the petitioner, in the light of the remarks furnished by the sponsoring authority, viz. the order was passed by the Minister concerned on 27.11.2003, but it was communicated only on 4.12.2003. 5. Apparent on the face of the record, there appears to be a glaring unexplainable delay in sending the remarks of the sponsoring authority and communicating the order of the Minister concerned, referred to above, which is not disputed by the learned Additional Public Prosecutor. 6. That apart, out attention was also invited to the decision in MANI v. THE STATE OF TAMIL NADU ETC. AND ANOTHER reported in 2000 (1) L.W.(Crl.) 452, wherein it is held that the failure on the part of the Detaining Authority to consider the representation received from the wife of the detenu prior to the passing of the impugned order of detention also would certainly vitiate the impugned order of detention and as such, the same cannot be sustained. 7. In the instant case, admittedly, the detaining authority failed to consider the representation of the wife of the detenu dated 15.9.2003 while passing the impugned order of detention. 8. Hence, the order impugned vitiates for non consideration of the representation of the wife of the detenu. For all these reasons, the impugned order is quashed and the Habeas Corpus Petition is allowed. The detenu Elumalai is directed to be released forthwith, unless he is required in connection with any other case.