Ramani vs The Commissioner of Police and Government of Tamil Nadu

Heard the learned counsel appearing for the petitioner and the learned Government Advocate (Crl.side) for respondents.

The petitioner has challenged the order of preventive detention dated 26.2.2003. The detention is on the ground that the detenue is a

Bootlegger. Even though several contentions have been raised in the Habeas Corpus Petition, it is not necessary to deal with all the contentions as

in our opinion, the contention relating to non-application of mind by the detaining authority at the time of passing the order of detention is

acceptable.

The detention is based on the incident dated 9.2.2003. In the order of detention, there is reference to seizure mahazar containing the crime

number. It is the assertion of the petitioner that at the time of effecting the seizure, crime number could not have been furnished and it appears that it

could not have been prepared at the spot and there has been subsequent insertion in the police station. In the counter, it is admitted that the crime

number was not given at the spot but subsequently in the police station the crime number has been added. Whatsoever may be the truth of the

explanation, it was the duty of the detaining authority to have dealt with this aspect. However, without making any efforts to find out about such

aspect, the order has been passed.

Learned counsel for the petitioner has placed reliance upon the decision reported in 1998(1) LW (Cri) 284 (Maria Susai V. The Commissioner

of Police etc.) . In the said case, it was found that the crime number had been inserted in the seizure mahazar subsequently. Considering that, there

was a clear case of manipulation, the Division bench of this Court directed, release of the detenu. In other case reported in 2002(1) C.T.C. 669

(Gomathi V. District Collector and District Magistrate, Kancheepuram), the detenue was arrested on 18.8.2001 at 9.00 p.m. and the crime was

registered at 10.00 p.m. However, in the seizure mahazar prepared at 9.15 p.m. crime number had been indicated. Inspite of this discrepancy, the

detaining authority had not called for any clarification in the matter. It is observed that "" We perused the records and we find that the petitioner is

right in his submission. This is a clear case of non-application of mind. In a case of this nature, the detaining authority before passing the detention

order should have sought for necessary clarification."" On the aforesaid ground, the detention order had been quashed in the said case.

Learned Government Advocate (Crl.side) appearing for the State however, placed reliance upon the decision of the Division Bench of this

Court made in H.C.P.No.11/2003 which was disposed on 14.10.203. In the said case, similar discrepancy had been pointed out. However, an

affidavit had been filed on behalf of the State to the effect that over mobile phone, the crime number was ascertained and given at the time of

seizure. Such explanation was found acceptable by the Division Bench of this Court.

However, in the present case, the affidavit on behalf of the State is to the effect that the crime number was subsequently added by the

Investigating Officer after the registration of the case in the Police Station.

The facts of the present case are entirely different from the facts of the case relied on by the learned Government Advocate (Crl.side) in the

unreported case H.C.P.No.11/2003. On the other hand, the facts of the present case are quite similar to the facts in 2002(1) C.T.C. 669 (Maria

Susai V. The Commissioner of Police etc.).

We are therefore inclined to accept the contention of the learned counsel for the petitioner on the aforesaid ground. The order of detention is

quashed. The Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith unless he is required in connection with any other

case.