PARIMALA Vs. STATE

JUDGEMENT

(1.) THE husband of the petitioner was detained by the impugned Detention Order dated 31.01.2008 on the file of the District Magistrate and District Collector of Vellore under the provisions of Sub Section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), branding him as a "Bootlegger".

(2.) THE detenu had six adverse cases to his credit apart from one ground case. Insofar as the ground case is concerned, on 15.01.2008, at 7.00 hours, the Inspector of Police, Gudiyatham Taluk Police Station along with the Village Administrative Officer, Olakasi Village, Village Menial and police party observed the villagers regarding prohibition cases and at the river bed in Chinnathottalam, they noticed that the detenu had kept one plastic can in front of him and indulging in business. On seeing the police party, the detenu had made attempts to escape from the place, but was apprehended and a voluntary confession statement was recorded. At 8.00 hours on the same day, one white colour plastic can with a capacity of about 10 litres containing 5 litres poisonous odour country arrack, 1300 litres poisonous odour country arrack of 13 big motor tubes each containing 100 litres, the sale proceeds of Rs.85/- and one silver tumbler with arrack odour were seized and samples were taken. On chemical analysis, the samples taken from the detenu were found to contain atrophine. THE detenue was arrested and was produced before the learned Judicial Magistrate, Gudiyatham, on the same day, who remanded him till 29.01.2008.

(3.) THE Detention Order is liable to be set aside on the ground that on the same day, the Sponsoring Authority had taken two different views. THE application for bail made by the detenu in Crl.M.P.No.572 of 2008 was ordered by the learned Principal Sessions Judge, Vellore, on 30.01.2008. THE order reads as follows:-"Heard both sides. THE learned petitioner's counsel has represented that the petitioner is charged u/s.4(1)(i)(aaa) and 4(1-A)ii of T.N.P. Act r/w. 328 IPC. THE petitioner is in judicial custody from 15.01.2008. THE petitioner is innocent. Hence, he is praying for enlargement of bail.THE learned Public Prosecutor vehemently opposed the bail application by stating that he is awaiting for chemical analysis report and also represented that no action has been taken against the petitioner either under Bootlegger's Act or Goondas Act. Hence, he is praying for the dismissal of the bail application.Considering the arguments of both counsel since the petitioner was arrested on 15.01.2008 and in judicial custody for the past 18 days, but no chemical analysis report has been filed to show that the liquor contains poisonous substance and the investigation is almost over.In these circumstances if the petitioner is enlarged on bail no prejudice will be caused to the investigation. Hence, this Court is inclined to enlarge the petitioner on bail with condition.In the result, the petitioner is ordered to be enlarged on bail on the petitioner executing a bond for Rs.5,000/- with two sureties for a like sum each to the satisfaction of the Judicial Magistrate, Gudiyatham with condition to report before Judicial Magistrate, Gudiyatham daily at 10.30 A.M. for 30 days." 4. It appears that the learned Principal Judge had also taken note of the fact that there was no action contemplated against the petitioner either under Bootleggers Act or Goondas Act for consideration of bail application. Factually in that case the detenu was granted bail. In fact, the said submission made on behalf of the Sponsoring Authority could have waived the mind of the learned Principal Sessions Judge for grant of bail. On the other hand, the very same Sponsoring Authority had filed an affidavit sponsoring the detention, which fact is not disputed before this Court. In our view, the Sponsoring Authority, on one hand, by making a representation through the learned Assistant Public Prosecutor that no action is contemplated against the detenu either under the Bootleggers Act or Goondas Act, only in order to see that the application for bail is rejected and when he came to know that the application for bail was ordered, had chosen to take action against the detenu by sponsoring the same to the Detaining Authority and by such act, the Sponsoring Authority has invoked the provisions as a punitive measure and not a preventive measure. THE Detention Order is only on the basis of such an affidavit of the Sponsoring Authority and in such circumstances, the Detention Order smacks genuineness and consequently is vitiated.5. This Court in the judgment reported in 2004-1 L.W.(Crl.) 394 (Suresh Kumar -vs- State rep. by the District Magistrate and District Collector, Tiruchirapalli District and others) had also held that when a Sponsoring Authority has taken a different stand before different Fora, it would vitiate the Detention Order.