Ansar vs State of Tamilnadu

S. Palanivelu, J.—The petitioner has been branded as ""Goonda"". The 2nd respondent clamped detention order dated 19.9.2007 and the

petitioner was detained.

The petitioner came to the adverse notice of the police in two cases viz.,

(i) in Crime No. 85/2007 on the file of the Tirunelveli Town Prohibition Wing Police Station u/s 4(1)(aaa) of the Tamil Nadu Prohibition Act read

with Rule 7 of the Tamil Nadu Rectified Spirit Rules 2000 and Section 279 of the Indian Penal Code in which it is alleged that he transported 16

cans of Rectified Spirit each containing 35 litres and charge sheet was laid before the Judicial Magistrate No. 4, Tirunelveli and the case is pending

in C.C. No. 158 of 2007.

(ii) the next case is in Crime No. 445/2007 on the file of the Boothapandy Police Station registered under Rules 6, 7 of the Tamil Nadu Rectified

Spirit Rule 2000 read with 4(1)(aaa) and 14(a) of the Tamil Nadu Prohibition Act and Section 57 of the Tamil Nadu Excise Act. In the said case

also, it is alleged that he transported Rectified Spirit in 16 cans each containing 35 litres.

The ground case was registered u/s 4(i)(aaa), 4(i)(a) of the Tamil Nadu Prohibition Act read with 7 of Tamil Nadu Rectified Spirit Rules 2000

on the file of Alangulam Prohibition Enforcement Wing in which it is stated that on 6.8.2007 at 10.30 hours, while Thiru. Sabapathy, Sub Inspector

of Police, Kuzhithurai Police Station, Kanyakumari District and police party were watching the movements of vehicles at Padanthalumoodu Check

Post, they followed a Maruthi Car bearing Number KL.03 J 3387 and when the car reached a poultry farm, it was stopped. They found 500 cans

of Rectified Spirit each containing 35 litres in the said pultry farm. There was no permit for the above said spirit.

The learned Counsel for the petitioner would strenuously contend that the petitioner had presented a representation before the detaining

authority. Even though he rejected the representation, he should have referred the representation to the Government but he had not done so, which

are latches on the part of the detaining authority and the same would vitiate the detention order. He preferred the representation on 24.9.2007

before the detaining authority but on 28.9.2007, the detaining authority rejected the representation stating that there is no ground to consider his

request.

In this connection, the learned Counsel gained support from the order of a Division Bench of this Court dated 18.9.2002 passed in H.C.P. No.

1145 of 2002 wherein the learned Judges have held that even though if the detaining authority had rejected the representation, the detaining

authority, thereafter should have sent the representation to the Government so as to enable the Government to place it before the Advisory

Committee for consideration and since such steps were not taken by the detaining authority, the order got vitiated.

The relevant portion of the above said decision goes thus:

The discussion, which we have made above, therefore, shows that the representation of the detenu, which was sent to the detaining authority on

2.5.2002 and received by him on 3.5.2002, which was also considered and rejected by him, was not sent to the Government, though the detaining

authority sent only the rejection order, which by itself is not sufficient. The detaining authority ought to have sent the representation of the detenu to

the Government for enabling the Government to place the same before the Advisory Board and it will not be out of place for us to refer the fact

that the advisory Board met on 6.6.2002 and if the detaining authority has forwarded the representation, which was received by him on 3.5.2002,

it would have been placed before the Advisory Board on the said date, which it met. The action of the detaining authority in not forwarding the

representation, therefore, vitiates the order of detention. It is, accordingly, set aside.

In view of the stand taken by this Court, we are of the considered view that the detaining authority in having not forwarded the representation to

the Government, the order of the detention got vitiated. It is an admitted fact that on 26.10.2007, an Advisory Committee Meeting was held and if

the detaining authority had forwarded the representation to the Government, it might have been placed before the said Advisory Committee and

the necessary decision might have been taken thereon.

For the reasons stated above, the Habeas Corpus Petition is allowed. The impugned detention order dated 19.9.2007 is quashed and the

detenu is directed to be released forthwith if he is not required in connection with any other case.