BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/04/2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE Ms. JUSTICE R.MALA H.C.P.(MD) No.866 of 2008 Kaliswari .. Petitioner vs. 1.The Commissioner of Police, Madurai City, Madurai. 2.The State of Tamil Nadu, rep. by its Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, Chennai - 9. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records pertaining to the proceedings of the 1st respondent made in his proceedings in No.74/BDFGISSV/2008 dated 8.9.2008 and quash the same and set the petitioner's husband Sounder, S/o.Vellai Krishna Konar as a "Drug Offender" at liberty from Central Prison, Madurai. !For petitioner ... Mr.K.Jeganathan ^For respondents ... Mr.Daniel Manoharan Addl.Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
This Writ Application challenges the order of the first respondent made in
his proceedings in No.74/BDFGISSV/2008 dated 8.9.2008 whereby the petitioner’s
husband was ordered to be detained under the provisions of the Tamil Nadu
Prevention of Dangerous Activities of Boot-Leggers, 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 “Drug
Offender”.
2. The Court heard the learned counsel appearing for the petitioner and
looked into all the materials available including the order under challenge.
3. Pursuant to the recommendation made by the sponsoring authority that
the detenu was involved in three adverse cases viz., Crime No.27/2006 under
Sections 8(c) r/w 20(b)(ii)(A) NDPS Act 1985 registered by B 15 Madhichiam
Police Station; Crime No.908/2006 under Sections 8(c) r/w 20(b)(ii)(A) NDPS Act
1985 registered by E2 Madhichiam Police Station; Crime No.1046/2007 under
Sections 8(c) r/w 20(b)(ii)(A) NDPS Act 1985 registered by E2 Madhichiam Police
Station and in one ground case in Crime No.817/2008 under Sections 8 C r/w
20(b)II(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 registered by
E2 Madhichiam Police Station, the detaining authority recorded his subjective
satisfaction that the activities of the detenu were prejudicial to the
maintenance of public order and public health and that he should be detained as
a “Drug Offender” and accordingly, made the order of detention, which is the
subject matter of challenge before this Court.
4. Assailing the order of detention, learned counsel appearing for the
petitioner raised the following grounds:-
(i) Firstly, the bail application in Crl.M.P.No.510/2008 filed in the
ground case in respect of Crime No.817/2008 was dismissed by the Special
District and Sessions Court for Essential Commodities and Narcotic Drugs and
Psychotropic Substances Act Cases, Madurai on 27.8.2008. Thereafter, he had not
filed any bail application either in the ground case or in the adverse cases but
the detaining authority has stated in its order that there was real possibility
of the detenu coming out on bail. Such an observation was made without any
material or basis whatsoever. It was only an apprehension in the mind of the
detaining authority.
(ii) According to the materials available on record, the detenu was found
in possession of 1.5 kg of ganja at 13.00 hours on 13.8.2008 and he was also
arrested according to the prosecution. The case was registered at 15.15 hours in
Crime No.817/2008. The arrest card was prepared at the place of occurrence,
according to the prosecution. If to be so, the arrest card should not have
contained crime number but the arrest card contained crime number. Under the
circumstances, a clarification should have been sought for by the detaining
authority but not done so.
(iii) Thirdly, the detenu was found to be in possession of the contraband
and there were two accused involved in the case and two recoveries were made,
according to the prosecution. If to be so, two samples should have been taken
but only one sample was sent for analysis. Under the circumstances, the
detaining authority should have called for a clarifications but not done so.
5. The Court heard the learned Additional Public Prosecutor on the above
contention and paid its anxious consideration on the submissions made.
6. After hearing the submissions and looking into the materials available,
the Court has to necessarily agree with the learned counsel for the petitioner
to set aside the order of detention on the three grounds.
7. On the date when the order came to be passed, there was not even one
bail application filed or was pending before any Court of criminal law. Even
bail application filed in the ground case was also dismissed as stated above.
But the detaining authority has stated in its order that there was real
possibility of the detenu coming out on bail. Such an observation was made
without any material or basis whatsoever. It was only an apprehension in the
mind of the detaining authority and mere apprehension would not be sufficient to
pass an order of detention. To pass such an order, the Act requires a specific
material, which should impel the authority to make such an observation. In the
absence of such material, making such an observation is without any basis and
hence, the order of detention has got to be set aside.
8. Insofar as the second ground raised, according to the investigating
agency, when the detenu was found in possession of 1.5 kg ganja at bout 13.00
hours, the arrest card was prepared. The case was registered in the Police
Station at 15.15 hours. Naturally, the crime number could not have found place
in the arrest card but the arrest card contained the crime number, which would
casts a doubt whether the arrest card would have come into existence as put-
forth by the investigating agency. Under the circumstances, the detaining
authority should have called for a clarification but not done so.
9. Equally, when the prosecution came with the story that there were two
accused in Crime No.817/2008 and two recoveries were made, two samples should
have been taken but only one sample was sent to analysis. If to be so, the
detaining authority should have asked for clarification as to what happened to
the second sample but not done so.
10. On all the three grounds referred to above, the order of detention has
got to be set aside. Accordingly, the order of detention is set aside. The
detenu is directed to be set at liberty forthwith unless he is required in
connection with any other case. The Habeas Corpus Petition is allowed.
asvm
To
1.The Commissioner of Police,
Madurai City,
Madurai.
2.The State of Tamil Nadu,
rep. by its Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Chennai – 9.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.