Banumathi v. The Secretary, Government of Tamil Nadu, Prohibition and Excise Department & Another
2008-04-24
D.MURUGESAN, V.PERIYA KARUPPIAH
body2008
DigiLaw.ai
Judgment :- D. Murugesan, J. The petitioner is the wife of the by name Ponnusamy, who has been detained by the order of detention dated 112. 2007 passed by the second respondent branding him as a Bootlegger, in exercise of powers conferred under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). Challenging the above said order of detention, the present Habeas Corpus Petition is field seeking order quashing the order of detention. 2. The order of detention in question came to be passed on the following grounds that on a complaint from one Mr. Chinnappan stating that at about 15.30 hours he went to Koraiyaru Village via., Malayanur Chekkadi for fishing. He wanted to consume arrack and when he enquired about the availability, came to know that the detenu was selling arrack at a lane near by his house. At about 12.30 hours he paid Rs.20/- to the detenu and purchased two tumblers of illicit arrack and consumed the same. After consuming the same, he had burning sensation in his eyes, throat, stomach and felt giddiness, vomited and laid down at road side. After regaining his consciousness about two hours later, he went to the police station and on suspicion that the detenu might have mixed some poisonous substance to increase the effect of intoxication, lodged a complaint. The said complaint was registered by the Sub Inspector of Police in Cr.No. 424 of 2007 for the offences under Sections 4(1) (i) r/w 4(1-A) of the Tamil Nadu Prohibition Act on the file of Thanipadi Police Station. Thereafter, the Inspector of Police Tondarampet Circle on taking up investigation along with police party went to the place and arrested the detenu and also seized the contraband samples and sent the same for chemical analysis and the chemical analysis report showed the presence of atropine in the contraband samples. Hence, the sponsoring authority had recommended for the detention of the detenu under Act 14 of 1982, as the detenue had also involved in similar cases at least on six earlier occasions. 3. The detention order is now questioned on the ground that on coming to know of the detention order, a representation dated 212.
Hence, the sponsoring authority had recommended for the detention of the detenu under Act 14 of 1982, as the detenue had also involved in similar cases at least on six earlier occasions. 3. The detention order is now questioned on the ground that on coming to know of the detention order, a representation dated 212. 2007 was made and in the said representation, it was stated by the wife of the detenue that as the detenu had filed a bail application in respect of the case in Cr.No.424 of 2007 before the Principal Distinct Court, Thiruvannamalai only in order to prevent him from coming out on bail, the order of detention came to be passed. Though the said representation was rejected on 07.01.2008, neither representation nor the order rejecting such a representation was placed before the Advisory Board at the time of the Advisory Board meeting, which was held on 24.01.2008. 4. Mr. C.C. Chellappan, learned counsel appearing for the petitioner would submit that effect of non placement of the representation and the orders passed thereon before the Advisory Board by the detaining authority would certainly cause prejudice to the detenu, as he has been deprived of an opportunity of consideration of such grievance by the Advisory Board. 5. We have also heard Mr. V.R. Balasubramaniam, learned Additional Public Prosecutor. It has been consistently held by this court in various pronouncements that the representation if any made and orders if any passed, before Advisory Board at the time of its meeting and such a representation and the order rejecting the representation must be placed in the event, the representation contains serious allegations. It may not be necessary for the detaining authority for placing all such representation before the Advisory Board. However, the same depends upon the facts of each case. In this case, the wife of the detenue, the petitioner herein had filed an application for bail in ground case and on knowing the same that the detenu may come out on bail and in order to prevent him from coming out bail, the order of detention came to be passed. It is not for the detaining authority to consider whether the representation bears valid objection and such a representation is required to be placed before the Advisory Board or not. It is only for the Advisory Board to consider such objection. 6.
It is not for the detaining authority to consider whether the representation bears valid objection and such a representation is required to be placed before the Advisory Board or not. It is only for the Advisory Board to consider such objection. 6. On the facts of this case, we are of the considered view that failure on the part of the detaining authority in placing not only the representation, but also the order rejecting the representation before the Advisory Board would cause prejudice as the petitioner has been deprived of his valuable right of consideration of the representation by the Advisory Board. A similar view has been taken by this court in H.C.P.No. 1739 of 2007 dated 21.04.2007 and H.C.P.No.1196 of 2007 by order dated 23.04.2007. In fact, those orders were passed by following the judgment in Selvi Vs. State rep. by the Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai 600 009 2004-1-L.W. (Crl.) 396. 7. For the above said reasons, the Habeas Corpus Petition should succeed. Accordingly the Habeas Corpus Petition is allowed and the impugned order of detention dated 112. 2007 passed by the first respondent against the detenu by name Ponnusamy, S/o. Thoppuli is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.