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2005 DIGILAW 1483 (MAD)

Kasi v. The Commissioner of Police & Another

2005-09-02

P.D.DINAKARAN, S.K.KRISHNAN

body2005
Judgment :- (Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Habeas Corpus as stated therein.) P.D.Dinakaran, J. The order of detention dated 6.6.2005 passed by the first respondent 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, branding one Kasi as bootlegger is challenged by the detenu himself. 2. According to the prosecution, the ground case is said to have taken place on 16.5.2005. On that day, the Inspector of Police, Prohibition Enforcement Wing, Madhavaram Unit along with his police party proceeded to conduct prohibition raid. On credible information, the police party rushed to Palavayal behind Moogilan Street and found that the accused Kasi was selling I.D.arrack by keeping the same in a 35 litre plastic bag. On seeing the police party, the detenu, who tried to escape from that place was apprehended by the police and the police have also recovered the said 35 litre plastic bag with 32 litres of ID arrack and two more 35 litre plastic bags each containing 32 litres of ID arrack. Thereafter, it was found on chemical analysis that the arrack contained atropine, a poisonous substance. Hence, the Inspector of Police arrested the accused Kasi and registered a case in Crime No.219/2005 on the file of the Prohibition Enforcement Wing, Madhavaram Unit, for the offence under Sections 4(1)(i), 4(1)(aaa) and 4(1)(A) of TNP Act. 3. Taking into consideration the above case as ground case and other eleven adverse cases of alike nature, the detaining authority had passed the order of detention on 6.6.2005 terming the detenu as "Boot-legger", under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982. Hence, the above petition. 4. The core contention of the learned counsel for the petitioner attacking the impugned order of detention is based on non-application of mind by the detaining authority, which could be seen from the relevant materials available on record with regard to the time of destroying I.D.arrack alleged to have been seized on 6.5.2005 from the accused. In support of his contention, the learned counsel referred to the F.I.R., which is found at page No.79 of the booklet, wherein it was recorded that six bottles, each containing 500 ml. In support of his contention, the learned counsel referred to the F.I.R., which is found at page No.79 of the booklet, wherein it was recorded that six bottles, each containing 500 ml. of I.D.arrack were seized from the accused at about 6.45 hours and after taking samples, the entire remaining I.D. arrack was brought to the Police Station and was destroyed at 20.00 hours, whereas in the list of property sent to the Magistrate in Form No.91 dated 16.5.2005, it was stated that after taking samples in six bottles, each containing 500 ml. of I.D.arrack, the balance was poured out at the place of seizure itself and destroyed. The relevant portion of Form 91 dated 16.5.2005 reads as follows, That apart, as per the destruction certificate prepared by the Inspector of Police for having destroyed the remaining I.D.arrack, which is found at page No.88 of the booklet, it is certified that out of the 103 liters of I.D. arrack, after taking six bottles, each containing 500 ml. of I.D. arrack for chemical analysis, the balance I.D. arrack was destroyed at about 20.00 hours on 6.5.2005 in the ground behind Palavayal Moogilan Street. The discrepancy with regard to the place of destroying the remaining I.D.arrack from the material available on record is apparent on its face. Hence, we are of the considered opinion that the detaining authority has failed to take note of the contradictory materials, placed before him as to the time and the place where the I.D. arrack was destroyed and the same vitiates the impugned order of detention for non-application of mind. 5. Therefore, as rightly argued by the learned counsel for the petitioner, the impugned order of detention suffers from non-application of mind and hence, the same is quashed and the habeas corpus petitions is allowed. The detenu is directed to be released forthwith, unless he is required in connection with any other case.