BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE Ms.JUSTICE R.MALA HCP (MD) No.818 of 2008 Jaffar alias Abdul Jaffar .. Petitioner vs 1.The State of Tamil Nadu Rep. by its Secretary to Government Home, Prohibition and Excise (XVI) Department Fort St. George Chennai 600 009. 2.District Magistrate and District Collector Virudhunagar District Virudhunagar 3.The Superintendent of Prison Madurai Central Prison Madurai 4.The Secretary Advisory Board Coovam House Swamy Sivanandha Salai Chennai 600 002. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for entire records connected with the detention order of the respondent no.2 in Cr.M.P.No.23/08/Drug Offender/dated 18.9.2008 and quash the same and direct the respondents to produce the body and person of the detenu by name Jaffar @ Abdul Jaffar, aged about 52 years, son of Nagoor Meeran, now confined at Madurai Central Prison before this Court and set him at liberty forthwith. !For Petitioner ... Mr.R.Alagumani ^For Respondents ... Mr.N.Daniel Manohar Additional Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
This petition challenges an order of the second respondent made in
Cr.M.P.No.23/2008 dated 18.9.2008 whereby the petitioner herein was ordered to
be detained under Act 14/82 branding him as a Drug Offender.
2.Admittedly, there were three adverse cases namely (1) Sivakasi Town PS
Cr.No.1153/2007 under Sec.8(c) r/w 20(b)(ii)(B) of NDPS Act 1985; (2) Sivakasi
Town PS Cr.No.62/2008 under Sec.8(c) r/w 20(b)(ii)(B) of NDPS Act 1985; and (3)
Sivakasi East PS Cr.No.576/2008 under Sec.8(c) r/w 20(b)(ii)(B) of NDPS Act
1985, and also a ground case registered by Thiruthangal Police Station in Crime
No.395/08 under Sec.8(c) r/w 20(b)(ii)(B) of NDPS Act 1985. In the ground case,
he was found in possession of 1500 grams of ganja, and he was arrested. On
scrutiny of the materials available, the detaining authority recorded its
satisfaction that the activities of the detenu were prejudicial to the
maintenance of public health and public order and hence passed the order under
challenge terming him as a drug offender.
3.The order is assailed by the learned Counsel for the petitioner on two
grounds:
(a) Firstly, there was non application of mind on the part of the
detaining authority since clarification as required under law was not sought for
by the authority. In the instant case, as per the materials available, a case
came to be registered by Thiruthangal Police Station in Crime No.395/2008 at
about 10.45 A.M. pursuant to the recovery of 1500 grams of ganja at about 9.30
a.m. which was made under a cover of an athatchi, and also he was arrested at
the spot. The athatchi for recovery of the contraband if looked into, would
contain the crime number also. Had it been true that the athatchi was prepared
at the spot at about 9.30 a.m. as put forth by the investigating agency, it
could not have contained the crime number at all, but it contained so. Hence it
casts a doubt whether athatchi could have come into existence as put forth by
the investigating agency. Under the circumstances, the detaining authority
should have called for a clarification which was a must under the circumstances
but failed to do so.
(b) Secondly, there was a delay in consideration of the representation.
4.The Court heard the learned Additional Public Prosecutor on all the
above contentions.
5.Admittedly, he is involved in three adverse cases and one ground case.
He was arrested in the ground case for the alleged possession of 1500 grams of
ganja at about 9.30 a.m., and the case came to be registered in Crime
No.395/2008 at 10.45 hours. The contraband was recovered under a cover of
athatchi at the time of arrest. Admittedly, the athatchi contained the crime
number also. As rightly pointed out by the learned Counsel for the petitioner,
if the contraband was seized at 9.30 hours and the case came to be registered at
10.45 hours, the athatchi could not have contained the crime number. In such a
situation, the detaining authority should have called for a clarification, but
not done so. This would be indicative of the non-application of mind on the
part of the detaining authority, and the same has affected the impugned order.
6.As far as the second ground namely delay, is concerned, the Hon’ble
Minister for PWD & Law dealt with the representation on 15.10.2008 and rejected
the same. But the rejection letter was prepared only on 22.10.2008. Thus,
there was a delay of 7 days which remained unexplained. This undue delay would
not only affect the order, but also cause prejudice to the interest of the
petitioner herein. On both the grounds, the order has got to be set aside.
7.Accordingly, this habeas corpus petition is allowed setting aside the
order of the second respondent. The petitioner/detenu is directed to be set at
liberty forthwith unless his presence is required in connection with any other
case.
nsv
To:
1.The Secretary to Government
Home, Prohibition and
Excise (XVI) Department
Fort St. George
Chennai 600 009.
2.District Magistrate and
District Collector
Virudhunagar District
Virudhunagar
3.The Superintendent of Prison
Madurai Central Prison, Madurai
4.The Secretary
Advisory Board, Coovam House
Swamy Sivanandha Salai
Chennai 600 002.
5.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai