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P.Malarkodi v. State of Tamilnadu - H.C.P.(MD) No.79 of 2007  RD-TN 1296 (4 April 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HON'BLE MR.JUSTICE M.CHOCKALINGAM
THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR
H.C.P.(MD) No.79 of 2007
P.Malarkodi .. Petitioner vs
1.State of Tamilnadu
rep. by Secretary to Government
Prohibition and Excise Department
Fort St. George
2. The District Magistrate and
Karur .. Respondents
Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for the records relating to the detention order passed by the second respondent in detention order in C.R.M.P.No.8 of 2006 dated 8.12.2006 and quash the same and direct the respondents to produce the body of the detenu K.Modi alias Ponnusamy, son of Kulanthan, now detained in Central Prison, Trichy, before this Court and set him at liberty.
For Petitioner : Mr.N.Ananda Kumar For Respondents : Mr.Daniel Manoharan
Additional Public Prosecutor :ORDER
Order of the Court was made by M.CHOCKALINGAM, J. Invoking the writ jurisdiction of this Court, the petitioner, the wife of the detenu namely Modi @ Ponnusamy, has made this petition seeking a writ of habeas corpus to quash the order of detention passed by the second respondent dated 8.12.2006.
2.The order under challenge is perused. The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor.
3.On the recommendation made by the sponsoring authority that 6 cases under the provisions of the Prohibition Act were registered against the detenu, out of which 4 cases were pending trial, and 2 ended on admission by the detenu, the detaining authority, after perusal of the materials available, was of the opinion that they were sufficient to record a finding that the detenu is a bootlegger as defined under the provisions of Act 14/82 since his activities were prejudicial to the maintenance of public order and public health. Hence, he passed an order, which is the subject matter of challenge before this Court.
4.The learned Counsel for the petitioner inter alia would submit that the order came to be passed on 8.12.2006; that the petitioner sent a pre-detention representation on 20.11.2006; that it was very well in the hands of the detaining authority; that the same was not only given in person but also sent by post; that the receipt of the same is also well admitted in paragraph 4 of the counter; that if to be so, the detaining authority, after the passing of the order, was expected to place the same before the Advisory Board while placing the order for approval; that he has neither considered nor placed the representation before the Advisory Board, and under the circumstances, the order has got to be quashed.
5.The learned Counsel for the petitioner also placed reliance on the provisions of Sec.3 sub-section (3) of the Act. He would submit that in view of the said proviso, the order is infirm, and it has got to be set aside.
6.The Court heard the learned Additional Public Prosecutor on the above contentions.
7.It is not a matter in controversy that an order came to be passed by the detaining authority on 8.12.2006 terming the detenu Modi @ Ponnusamy, the husband of the petitioner, as a bootlegger on the strength of the recommendation made by the sponsoring authority, wherein it was found that he was involved in 6 adverse cases, all under the Prohibition Act, out of which 4 were pending, and 2 ended on admission. According to the detaining authority, on scrutiny of the materials, he was able to arrive at a subjective satisfaction, and it has got to be recorded that he is a bootlegger, since his activities are detrimental to the public order and public health. Now, the petitioner has challenged the said order on the above ground. It is not in controversy that the order came to be passed on 8.12.2006. According to the petitioner, who is the wife of the detenu, a representation was sent on 20.11.2006. As rightly contended by the learned Counsel for the petitioner, the receipt of the said representation is an admitted fact. If to be so, the law would require that while passing an order by the detaining authority on 8.12.2006, he is duty bound to consider the representation, and also after the passing of the order, the material namely the representation, which was earlier in point of time i.e., before the passing of the order under challenge, should have been placed before the Government. Now, it would be apt and appropriate to reproduce Sec.3 sub-section (3) of the Act as follows:
"Section 3: Power to make orders detaining certain persons: 1. .........
3. When any order is made under this section by an officer mentioned in sub- section 2 he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."
8.A reading of the above provision would clearly reveal that when any order is made under the said provision, the Officer who passed the order, shall forthwith report the fact to the State Government, and while doing so, he must place the grounds on which the order has been passed and such other particulars also, as, in his opinion, have a bearing on the matter. Now, at this juncture, it is to be pointed out that such other particulars has wide connotation in the opinion of the Court, which would also include the representation which was made by the petitioner even before the passing of the order. Thus, it would be abundantly clear that a specific provision mandates that such other particulars which have bearing on the matter, have got to be considered, and the detaining authority is also duty bound to place such materials before the State Government along with the order for approval. In the instant case, though a representation was made, which was pre-detention representation, even on 20.11.2006, and it has also been received by the detaining authority, the same was neither considered nor placed before the State Government along with the order for approval. It can be well stated that the provision which mandates that all the particulars in the hands of the authority should also be placed along with the order, has not been complied with. In such circumstances, this Court is able to see the violation of the provision, which would be sufficient to set aside the order of detention.
9.In the result, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in any other case. To:
1.The Secretary to Government
Prohibition and Excise Department
Fort St. George
2.The District Magistrate & District Collector
3.The Public Prosecutor
Madurai Bench of Madras High Court
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