Revathi vs The District Collector and District Magistrate and Others

P.R. Shivakumar, J.—The petitioner is the mother of the detenu. The detenu was detained by the first respondent by his Detention Order in Cr.M.P. No. 25/2015, dated 02.07.2015, holding him to be a "Boot-Legger", as contemplated under Section 3(1) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No. 430 of 2015 on the file of Tiruverumbur PEW Police Station for alleged offences punishable under Section 4(1)(aaa) r/w 4(1-A) of Tamil Nadu Prohibition Act, and Sections 328, 420, 468 and 471 IPC.

Though the order of detention has been assailed on a number of grounds, the learned counsel for the petitioner mainly relies on the following submissions:

"(1) There is non-application of mind on the part of the detaining authority in making a comparison of the order of bail granted by the High Court in a so-called similar case and the ground case, based on which the detention order came to be clamped on the detenu, holding him to be a boot-legger.

(2) When the detaining authority is not the Government, and the District Magistrate (Collector) acts under Sub-Section 2 of Section 3 of Act 14 of 1982, referring to a G.O., extending the delegation of powers to him, a copy of the G.O. ought to have been supplied to the detenu to enable him to make an effective representation for revocation of the order of detention. In any event, when a demand is made for the supply of a copy of the G.O., the same should have been furnished and the failure to furnish the same would amount to denial of reasonable opportunity to make an effective representation for revocation of the order of detention and thus, the order of detention itself will be vitiated."

We have heard the submissions made by Mr. A. Ramar, learned Additional Public Prosecutor, on the above said points raised by the learned counsel for the petitioner.

The detenu figures as an accused in Crime No. 430 of 2015 on the file of Tiruverumbur PEW Police Station, registered for the alleged offences punishable under Section 4(1)(aaa) r/w 4(1-A) of Tamil Nadu Prohibition Act, and Sections 328, 420, 468 and 471 IPC. The same is the ground case on which the detaining authority held the detenu to be a boot-legger. There is no adverse case, apart from the ground case. So far as the ground case is concerned, the petitioner filed a bail application in Crl.M.P. No. 1468 of 2015 on the file of the Principal Sessions Judge, Tiruchirappalli and the said petition came to be dismissed with the following observation:

"The learned Public Prosecutor has filed written objections and submitted that 1200 bottles were seized from the custody of this petitioner with fake IMF labels and illicit distillation and if it is marketed there would be human loss. The Public Prosecutor has further submitted that the samples were sent for chemical analysis report and that A1 has confessed that he had procured these bottles from A2 as Pondicherry bottles and A2 is yet to be secured and the investigation is in the early stage and there is every possibility for loss of Government exchequer and as well as human life and hence strongly objected.

Considering the gravity of the offence and seizure of large quantity viz., 1200 bottles of illicit liquor with fake labels and seal from the petitioner and that the investigation is at the early stage awaiting chemical analysis report, this Court is not inclined to grant bail. Petition is dismissed."

The similar case referred to by the detaining authority is Crime No. 336 of 2013 on the file of the very same Police Station, registered for the offence under Section 4(1)(aaa) r/w 4(1-A) of Tamil Nadu Prohibition Act. As rightly contended by the learned counsel for the petitioner, the detenu is facing charges for other offences also, viz. offences under Sections 328, 420, 468 and 471 IPC, besides the offence under Section 4(1)(aaa) r/w 4(1-A) of Tamil Nadu Prohibition Act. In addition, while the petition filed on behalf of the detenu for his release on bail was dismissed on the ground that the investigation was in the nascent stage and chemical analysis report was awaited, in the bail order taken for comparison by the detaining authority, this Court chose to grant bail on the ground that the investigation was almost over. The said order came to be passed by this Court on 17.06.2013 in Crl.O.P.(MD) No. 9361 of 2013. As rightly contended by the learned counsel for the petitioner, both the cases are not comparable and orders are also not comparable. The same shows improper comparison exhibiting non-application of mind and mechanical clamping of the order.

The document which is relied on by the detaining authority should be supplied without even a request for furnishing of the same, whereas a document which is referred to in the grounds of detention, though need not be furnished along with the grounds of detention, shall be furnished when a request is made by or on behalf of the detenu to make an effective representation. The non-furnishing of copy of such material even after request for furnishing the same, will vitiate the order of detention. The authority on this aspect is the order of the Full Bench of this Court in G. Kalaiselvi v. The State of Tamil Nadu, reported in 2007 (5) CTC 657, to which one of us was a party. Hence, on both grounds the order of detention is bound to be set aside.

Accordingly, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 02.07.2015, made in Cr.M.P. No. 25/2015, by the first respondent, the District Collector and District Magistrate, Tiruchirappalli District and directs the release of the detenu by name Prabhu, S/o. Prabakaran, aged about 24 years forthwith, if his custody/detention is not authorised in specific cases or by any other detention order.