(Order of the Court was made by M.CHOCKALINGAM, J.) In this writ petition, challenge is made to the order of detention, dated 08.12.2008, made by the 2nd respondent, whereby the husband of the petitioner by name Jothi @ Jothikumar was ordered to be detained under the Tamil Nadu Act 14 of 1982, branding him as a 'Bootlegger'.
2.Pursuant to the recommendations made by the sponsoring authority that the detenu was involved in one adverse case in Crime No.317/2004 registered on 18.08.2004 under Section 4(1)(aaa) of Tamil Nadu Prohibition Act read with Rule 3(k) of Tamil Nadu Spirit Rules, 1984 on the file of Kollemcode Police Station and in one ground case in Crime No.173/2008 registered under Rules 6 and 7 of Tamil Nadu Spirit Rules read with Sections 4(1)(A), 4(1)(aaa) and 14(A) of Tamil Nadu Prohibition Act on the file of Nithiravilai Police Station, for the occurrence took place on 16.11.2008, the detaining authority, the 2nd respondent, after looking into the materials available, formed an opinion that the activities of the detenu were prejudicial to the maintenance of public order and public health and hence he has got to be detained under the provisions of the Tamil Nadu Act 14/1982 terming him as a 'Bootlegger'. Accordingly, the detention order, which is the subject matter of challenge in this petition, came to be passed by the 2nd respondent on 08.12.2008.
3.Attacking the order of detention, the learned counsel for the petitioner, the wife of the detenu, raised three grounds. Firstly, the learned counsel submitted that the allegation against the detenu in the ground case was that he was in possession of 3255 litres of rectified spirit mixed with some poisonous substance, but the Chemical Analysis Report was a negative report. Secondly, the learned counsel would submit that though the bail application in Crl.M.P.No.2999/2008 filed by the detenu in ground case was dismissed by the learned Principal District Judge, Kanyakumari District on 21.11.2008 and thereafter the detenu had not filed any application for bail, the detaining authority has formed an opinion that there was a real possibility of the detenu coming out on bail. According to the counsel, the above opinion formed by the detaining authority was not based on any material but it was only mere apprehension in the mind of the detaining authority, which shows non-application of mind on his part and therefore the order of detention is liable to be quashed. Thirdly, the learned counsel would submit that in the adverse case, namely Crime No.318/2004, the name of the detenu does not find a place and even then it has been shown as a case pending against the detenu and in such circumstances, the detaining authority ought to have called for a clarification from the sponsoring authority on this aspect, but he has filed to do so.
4.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made by the counsel on either side.
5.As far as the first ground of attack that the seized contraband does not contain any poisonous substance, after perusing the Chemical Analysis Report annexed in the booklet, the Court has to necessary agree with the learned counsel for the petitioner. In paragraph No.5 of the grounds of detention, the detaining authority has stated that he was satisfied that the detenu was in possession of 3255 litres of rectified spirit mixed with some poisonous substances but, in the Chemical Analysis Report it has been categorically stated that the seized contraband does not contain any poisonous substance. In such circumstances, the subjective satisfaction arrived at by the detaining authority shows non-application of mind as to the papers placed before him and he has not made proper appraisement of the matter.
6.Coming to the next ground of attack, it is not in controversy that pursuant to the recommendations made by the sponsoring authority that the detenu was involved in one adverse case and one ground case in Crime No.173/2008 on the file of Nithiravilai Police Station, the detaining authority has clamped the impugned order of detention on the detenu. It is also not in controversy that the detenu moved a bail application in the ground case in Crl.M.P.No.2999/2008 before the Principal District Judge, Kanyakumari and the same was dismissed on 21.11.2008 and as such the detenu was in judicial remand on the date of detention, i.e. 08.12.2008. However, the detaining authority has formed an opinion that there was areal possibility of the detenu coming out on bail, which would be indicative of the fact that it was only mere apprehension in the mind of the detaining authority without any material whatsoever. This is not suffice to sustain the detention order. It is well settled that subjective satisfaction of the detaining authority must be based on specific and cogent materials and not otherwise. Therefore, the Court is of the considered opinion that the subjective satisfaction of the detaining authority as to the real possibility of the detenu coming out on bail was not based on any specific material and this would amount to non-application of mind on the part of the detaining authority and, therefore, the order of detention is liable to be set aside.
7.Insofar as the third ground that the adverse case does not contain the name of the detenu is concerned, the adverse case Crime Number is 318/2004 on the file of Kollemcode Police Station, registered on 18.08.2004 and in the copy of FIR annexed in the booklet, in the accused column, the name of the accused is mentioned as one Nirmalan and three others and thus, the name of the detenu has not been specifically stated. In such circumstances, the detaining authority is duty bound to ask for a clarification from the sponsoring as to the above discrepancy, but it has not been done so and the failure to do so also reflects the non-application of mind on the part of the detaining authority. Therefore, on all the above three grounds, the order of detention suffers and accordingly it requires an order of quashment.
8.Accordingly, the habeas corpus petition is allowed and the order of detention in No. P.D.No.33/2008, dated 08.12.2008, passed by the 2nd respondent is quashed. The detenu Jothi @ Jothikumar, is directed to be released forthwith, unless his presence, in accordance with law, is required in connection with any other case.
gb To:
1.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-9.
2.The District Collector, Kanniyakumari District at Nagercoil.
3.The Inspector of Police, Nithiravilai Police Station, Nithiravilai, Kanyakumari District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5.The Superintendent, Central Prison, Palayamkottai
6.The Joint Secretary to Government, Public (Law & Order) Fort St. George, Chennai - 9