Maheswari vs The Secretary to Government, Prohibition and Excise Department and The District Magistrate and District Collector

P. Sathasivam, J.—The petitioner, who is the wife of the detenu by name Allimuthu, who was detained as a ''''Bootlegger"" as contemplated

under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders,

Slum Grabbers and Video Pirates Act, 1982(Tamil Nadu Act 14 of 1982), by the impugned detention order dated 13.01.2006, challenges the

same in this Petition.

Heard learned Counsel for the petitioner as well as learned Additional Public Prosecutor for the respondents.

At the foremost, learned Counsel for the petitioner, by drawing our attention to paragraph 5 of the grounds of detention submitted that though

on the date of passing of the detention order the detenu has moved the bail application and the same was pending, the detaining authority has

wrongly stated that the detenu has not moved any bail application, which shows non application of mind on the part of the detaining authority.

We verified the necessary averments in paragraph 5 in which the detaining authority, after stating that he was aware that Allimuthu was in

remand from 30.12.2005 in Rasipuram PEW Crime No. 345/2005, has specifically stated that "" he has not moved any bail application...

The learned Counsel for the petitioner, by placing a copy of the order dated 18.01.2006 in CMP No. 56 of 2006 on the file of Principal District

Judge, Namakkal, has contended that in fact the bail application was filed even on 10.01.2006. The first paragraph of the said order amply shows

that the bail application was filed by the detenu Allimuthu on 10.01.2006. It is also the claim of the petitioner that on the same day notice was

taken by the Assistant Public Prosecutor and according to the counsel, necessary endorsement has been made by him in the same petition.

According to him, if that is so, it is but proper on the part of the sponsoring authority to intimate the same to the detaining authority. In this case, it

is not in dispute that the detention order was passed only on 13.01.2006. It is also not in dispute that the sponsoring authority, Principal District

Court, Namakkal and the detaining authority are stationed in one place viz., Namakkal. In such circumstances, we are of the view that the

detaining authority is not justified in making a statement that the detenu has not moved any bail application on the date of the detention order.

In this regard, the learned Counsel for the petitioner has very much relied on the Division Bench decision of this Court dated 10.08.1999 made

in HCP No. 1917 of 1998. In similar circumstances, the Division Bench, accepting the stand taken by the counsel for the petitioner/detenu, after

finding that the description made by the detaining authority regarding non filing of the bail application shows non application of mind on his part,

quashed the detention order. The said decision is applicable to the case on hand also. Accordingly, we are satisfied that the detaining authority has

not applied his mind and failed to take note of the pendency of the bail application, which was filed on 10.01.2006 well before the passing of the

detention order. On this ground, the detention order is liable to be quashed and the same is accordingly quashed.

Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty

forthwith from the custody unless he is required in some other case or cause.