State of Tamil Nadu & Anr Vs. Glory  Insc
130 (2 March 2001)
Shah & S.N. Variava S. N. Variava, J.
Appeal is against an Order dated 22nd March, 2000.
this Order a detention Order dated 15th May, 1999 has been quashed on the following reasoning
The ground case which forms the immediate basis for passing the order of
detention is said to have taken place on 4.5.99 at 9.15 p.m. The detenu was found committing the offence punishable
under Section 4(1-A) of the Tamil Nadu Prohibition Act and the offence is
registered in Crime no.834/99 on the file of the Prohibition and Enforcement
Wing, Thuckkalay. There are totally 11 adverse cases, the last of which is
stated to have taken place at 05.00 a.m. on
4.5.1999, for which offences under the Tamil Nadu Prohibition Act came to be
registered in Crime No. 383/99 on the file of the Thiruvattar Police Station.
The first information report regarding to that case in the last adverse case
referred to above is found at page 115 of the booklet and it shows that the
accused/detenu was arrested.
121 of the booklet contains the general diary for the last adverse case and it
shows that the arrested accused was sent for remand. It is contended by the
learned counsel for the petitioner that if he was in remand pursuant to this
arrest at 5.00 a.m. on 4.5.199, in the last adverse
case, then there must be material in the form of Court orders to show that the
arrested accused was released on bail on the being produced before the Court
for remand. But there is no material at all to show that the arrested accused
in the adverse case was released on Bail. Though it may be a bailable offence,
yet there must be record to show that the arrested accused in the last adverse
case was let on bail, which facilitated him to commit the offence in the ground
case on the same day. The detaining authority, in the absence of materials
showing that the arrested accused in the last adverse case was released on
bail, ought to have applied his mind to that aspect and asked for a
clarification from the sponsoring authority as to the circumstance under which
the accused in the ground case was found involving himself in the later part of
the same day.
he had not done it, there is a clear non application of mind on the part of the
detaining authority, which vitiates the order of detention.
could not be denied that there were 11 adverse cases against the detenu. As has
been noted the last adverse case was on 4th May, 1999 at 5 a.m. We have also been shown page 115 of the booklet wherein the
First Information Report has been recorded. The last adverse notice, referred
to by the Judge reads as follows :
of the Range Section of Law Disposal/Present Stage 11.
383/99 Dated 4.5.99 4(1)(a) TNP Act 1937 Thiru Rasalam. S/o Ponnaiyan was found
in possession of 5 litre illicit distilled arrack in a 5 litre black coloured
plastic can. He was arrested on 4.5.99 with the contrabands. The case was
charged on 4.5.99 and pending trial.
the above it is clear that this does not show that the detenu had been remanded
to judicial or police custody in this case.
have also seen page 121 of the booklet containing the general diary for the
last adverse case. We do not find any statement in this booklet which shows
that the accused has been sent for remand. The only statement is as follows :
have taken up the investigation and inquired the witnesses and recorded their
statements. I have enclosed their copies. I have inquired the accused. The
Accused without any coercion or fear accepted their guilt of having in
possession of illicit arrack and confirmation of the guilt from the statements
of the witnesses and confession statement made by the accused accepting their
guilt, I have closed my investigation and filed the charge sheet for the
commission of offences under mentioned Section and sent the same to the
Judicial Magistrate Court Padmanabhapuram.
Diary of the Court continues." A plain reading of this statement shows
that what has been sent to the Judicial Magistrate is the charge sheet for the
commission of the offence. The High Court seems to have misread the same and
concluded that the detenu had been remanded to judicial custody.
learned Judges have themselves noted that the offence is a bailable offence.
The facts show that the Detenu was again caught in the evening committing the
same offence. Thus apart from the fact that there is nothing on record to show
that the Detenu had been remanded to judicial custody, the factual position was
that the accused had been apprehended on the same evening committing the same
therefore, apparent that without taking into consideration these facts, the High
Court has quashed the detention order. The impugned Order of the High Court
cannot be sustained and it is hereby set aside. However, the Detention Order
was of 1999. The same had been quashed by the High Court in March 2000. The
period of detention is over. In our view, this is not a case where the Detenu
should be made to surrender to undergo the remaining period of detention.
Appeal stands disposed off accordingly. There will be no Order as to costs.