Malaiarasan vs The District Magistrate and District Collector and The State of Tamil Nadu

V.S. Sirpurkar, J.—Challenge is to the order dated 14-08-2003, passed by the District Magistrate and District Collector,

Ramanathapuram, dubbing one Gurunathan, son of Ramasamy Thevar as bootlegger and directing his detention under the Tamil Nadu Act 14 of

1982. The detenu has been found involved in three adverse cases and in the ground case for which the incident took place on 2-8-2003 wherein

he was found to be in possession of 110 its. of illicitly distilled arrack which ultimately was found to be mixed with Atropine.

Learned counsel for the petitioner points out that this is a classic example of non-application of mind. He pointed out that the sponsoring

authority had filed an affidavit before the detaining authority on 13-08-2003. We have gone through the original affidavit, which was filed by the

sponsoring authority on 13-8-2003. In that affidavit, it is mentioned by the sponsoring authority that the remand of the detenu was granted from 2-

8-2003 to 14-8-2003 and on 14-8-2003, the remand was extended up to 28-8-2003. As if this is not sufficient, even in the ground this position is

reiterated in paragraph 3 in the following words:

The accused was remanded till 14-8-2003 and lodged in the Sub Jail, Ramanathapuram on 2-8-2003. Further the remand is extended upto 28-

8-2003

It is, therefore, obvious that the detaining authority had taken note of the fact that the detenu was in the jail custody and that his remand was

extended up to 28-8-2003, which order is also on record and which order is dated 14-8-2003. Learned counsel points out that the sponsoring

authority, therefore, could obviously not have sworn the affidavit on 13-8-2003 as to what happened on 14-8-2003 nor could the remand order

which was obviously passed on 14-8-2003 be available to him for being presented to the detaining authority. It is, therefore, obvious case of non-

application of mind.

Learned Additional Public Prosecutor wants to get out of this difficult situation by saying that mentioning of the date as 13-8-2003 in the

affidavit is a typographical error and in fact the affidavit was sworn on 14-8-2003 and all the relevant documents were also produced before the

detaining authority only on 14-8-2003.

We are clearly not in a position to accept this for the simple reason that the date 13-8-2003 is mentioned in two places firstly as against the

date"" column and secondly in the solemnly affirming portion. The said affidavit is also counter-signed by the detaining authority. If this is the

situation then, obviously, the detaining authority has failed to note this very important discrepancy and that would obviously vitiate the detention.

In that view, the detention order is set aside and the writ petition is allowed. The detenu is directed to be set at liberty forthwith unless his

detention is required in any other case.