BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/04/2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE Ms. JUSTICE R.MALA H.C.P.(MD) No.566 of 2008 Prabhu alias Prabhakaran .. Petitioner vs. 1.The Commissioner of Police, Madurai City. 2.The Secretary to the Government, Home, Prohibition and Excise Department, Chennai - 9. 3.The Inspector of Police, D2, Sellur (L & O) Police Station, Madurai City. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records pertaining to the order of detention passed by the 1st respondent vide his proceedings in No.59/BDFGISSV/2008 dated 15.7.2008 and quash the same and consequently, set the detenue by name Karuppayee, who is presently confined at Special Prison for Women, Thiruchirapalli, at liberty. !For petitioner ... Mr.R.Anand ^For respondents ... Mr.M.Daniel Manoharan Addl.Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
Challenge is made to the order of the first respondent made in
No.59/BDFGISSV/2008 dated 15.7.2008 whereby the mother of the petitioner, by
name, Karuppayee 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) terming her as a “Drug
Offender”.
2. The Court heard Mr. R.Anand, learned counsel appearing for the
petitioner, looked into the materials available including the order under
challenge.
3. It is not in controversy that pursuant to the recommendations made by
the sponsoring authority that the detenue, Karuppayee was involved in seven
adverse cases viz., in Crime No.909/2006 under Section 8(C) r/w 20(b)(ii)(b)
NDPS Act 1985, Crime No.1137/2006 under Sections 8(c) r/w 20(b)(ii)(b) NDPS Act
1985, Crime No.1354/2006 under Sections 8(c) r/w 20(b)(ii)(a) NDPS Act 1985,
Crime No.8(c) r/w 20(b)(ii)(b) NDPS Act 1985, Crime No.1351/2007 under Sections
8(c) r/w 20(b)(ii)(a) NDPS Act 1985, Crime No.8(c) r/w 20(b)(ii)(b) NDPS Act
1985 and Crime No.8(c) r/w 20(b)(ii)(A) NDPS Act 1985 registered in D2 Sellur
Police Station, and in one ground case in Crime No.858/2008 u/s.8(c)
r/w20(b)(ii)(b) NDPS Act registered in D2 Sellur Police Station, for an incident
that took place on 11.6.2008, looking into all the materials available, the
detaining authority recorded his satisfaction that the activities of the detenue
were prejudicial to the maintenance of public order and public health and that
she should be detained under the provisions of the Tamil Nadu Act 14/1982
terming her as a “Drug Offender” and accordingly, made the order, which is the
subject matter of challenge.
4. Mr.R.Anand, learned counsel appearing for the petitioner in his sincere
attempt assailing the order, brought to the notice of the Court, the following
grounds:-
(i) Firstly, the order of detention came to be passed by the detaining
authority on 15.7.2008 and even before passing the order of detention, a pre-
detention representation was made on 16.6.2008 itself and the same was
considered and rejected but a copy of the said rejection was not supplied to the
detenue. A perusal of the order under challenge indicates that it was also a
document relied on. If to be so, a duty is cast up on authority for supply of
the said document but not done so.
(ii) Secondly, prior to the detention order, the detenue filed a petition
in Crl.O.P.(MD)No.2887 of 2008 under Section 482 of Cr.P.C. before this Court.
By order dated 4.8.2008, it was directed that the detenue should not be harassed
on the false allegations made. While such an order was passed, the sponsoring
authority should have placed all the connected materials before the detaining
authority for perusal. This has neither been done nor a copy was actually
supplied to the detaining authority.
(iii) Thirdly, a perusal of the materials would make it clear that on
11.6.2008, when the detenue was arrested, she was found in possession of 20
packets of ganja each weighing 5 gms and out of it, two samples were taken out,
which were weighing 50 grams each and they were sent for analysis through Court
but the analysis report clearly indicates that what was received was 38 grams.
If to be so, the detaining authority should have called for clarification but
failed to do so.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made. From
the scrutiny of the materials, it is quite clear that pursuant to the
recommendation of the sponsoring authority that the detenue was involved in
seven adverse cases and in one ground case as referred to above, the detaining
authority passed the order of detention on 15.7.2008. It is not in dispute that
there was a pre-detention representation made on 16.6.2008 and the same was also
rejected and the same is found mentioned in the order. Therefore, it would be
quite clear that it was a relied on document. Naturally, one would expect a
copy of the same should be served on the detenue but there is no material
available to indicate that the same was served. Hence, it would certainly
affect the order under challenge.
6. Further, the detenue approached this Court by filing a petition in
Crl.O.P.(MD)No.2887 of 2008. This Court by order dated 4.3.2008 made the order,
which runs as follows:-
“4. In view of the submissions made by both sides and also the reasons
assigned by the petitioner in the affidavit, this Court is constrained to direct
the second respondent police not to harass the petitioner on the basis of any
complaint preferred against her except dealing with the matter in accordance
with law, by strictly following the procedures and guidelines stipulated by the
Hon’ble Supreme Court in D.K.Basu Vs. State of West Bengal (AIR 1997 SC 610).”
While such an order was passed, a duty is cast upon the sponsoring authority to
place all the materials and in particular, that order before the detaining
authority but nothing is found in the order indicating that connected records
were placed before the detaining authority and thus, the sponsoring authority
did not enable the detaining authority to appraise the situation correctly.
7. Apart from that, as rightly pointed out by the learned counsel
appearing for the petitioner from the materials, it could be seen that on
11.6.2008, the ground case came to be registered in Crime No.858/2008 and when
she was arrested on the same day, she was found in possession of 20 packets of
ganja each weighing 5gms. Out of which, two samples of 50 grams each was taken
and it was also indicated that those samples were sent for analysis but the
analysis report as could be seen in page No.162 of the counter affidavit reveals
that, samples received was weighing only 38 grams. It is quite clear that this
was taken out of the alleged recovery of ganja and the same was supplied for
analysis. If to be so, the detaining authority should have called for
clarification in that regard but not done so. If the materials were not
properly placed before the detaining authority, the Court is of the considered
opinion that, he should have asked for it or even the scrutiny of the detention
order would indicate non-application of the mind on the part of the detaining
authority as referred to above and thus, either way, it affects the order under
challenge. Hence, the order under challenge has got to be set aside.
8. Accordingly, the order of detention is set aside and the detenue is
directed to be set at liberty forthwith unless she is required in connection
with any other case in accordance with law. Accordingly, the Habeas Corpus
Petition is allowed.
asvm
To
1.The Commissioner of Police,
Madurai City.
2.The Secretary to the Government,
Home, Prohibition and Excise Department,
Chennai – 9.
3.The Inspector of Police,
D2, Sellur (L & O) Police Station,
Madurai City.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.