IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 27.08.2010
CORAM:
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN
H.C.P. No.767 of 2010
Saravanan ... Petitioner
Vs.
1.The State of Tamilnadu,
rep. by its Secretary to the
Government, Home,
Prohibition and Excise Department,
Fort St. George,
Chennai 600 009.
2. The Commissioner of Police,
Coimbatore City.
3. The Deputy Superintendent of Police,
NIB CID, Coimbatore. ... Respondents
Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the records relating to the order passed by the second respondent in C.No.09/G/IS/2010 dated 7.4.2010 and quash the same and further direct the respondents herein to produce the body of the detenue viz. S. Shanthi W/o.Saravanan, now confined at Central Prison, Coimbatore before this Court and set the petitioner at liberty.
For Petitioner : Mr. S. Parthasarathy
For Respondents : Mr. Babu Muthu Meeran,
Additional Public Prosecutor
O R D E R
(Order of the Court was made by M. CHOCKALINGAM,J)
This petition is brought forth by the husband of the detenue challenging the order passed by the second respondent in C.No.09/G/IS/2010 dated 7.4.2010, whereby the detenue S. Shanthi was ordered to be detained as a “Drug Offender” under the provisions of the Act 14 of 1982.
2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge.
3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenue is involved in four adverse cases viz. (i) Coimbatore NIB CID Crime No.84/2008 for the offences under Sections 8(c) read with 20(b)(ii)(B) NDPS Act, 1985 (ii) Coimbatore NIB CID Crime No.157/2008 for the offences under Sections 8(c) read with 20(b)(ii)(B) NDPS Act, 1985; (iii)Coimbatore NIB CID Crime No.112/2009 for the offences under Sections 8(c) read with 20(b)(ii)(B) and 31 NDPS Act, 1985; (iv)Coimbatore NIB CID Crime No.113/2009 for the offences under Sections 8(c) read with 20(b)(ii)(B) and 31 NDPS Act, 1985 and one ground case in Crime No.22/2010 registered by Coimbatore NIB CID Unit for the offences under Sections 8(c) read with 20(b)(ii)(B) NDPS Act, 1985 for the incident that had taken place on 9.2.2010 and the detenue was arrested on the same day, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and public health, which is the subject matter of challenge before this Court.
4. Advancing arguments on behalf of the petitioner, learned counsel raised two points before this Court. A perusal of the record would indicate as it the detenue was found in possession of 10 kgs. Of ganja on 9th February, 2010 at 15.00 hours and the same was recovered under the cover of mahazar and she was arrested on the same day at 16.45 hours and thereafter, a case in Crime No.22 of 2010 was registered at 17.30 hours. But the arrest memo as found in page No.82 of the booklet contains Crime No.22 of 2010. Had really the case was registered at about 17.30 hours in Crime No.22 of 2010, the said Crime number could not have been mentioned in the arrest memo which was claimed to have been prepared at about 1645 hours. Hence, it would require a clarification at that juncture. But the Authority has failed to do so.
5. Learned counsel would further add that the detenue has moved for bail application in Crime No.22 of 2010 before the Special Court for E.C. and N.D.P.S. Act Cases, Coimbatore in C.M.P. No.207 of 2010 and the same was dismissed on 31.3.2010. The detention order came to be passed on 7.4.2010, but the Authority has stated that there was a real possibility of the detenu coming out on bail. When the detention order was passed on 7.4.2010, not only bail application filed by the detenue was dismissed on 31.3.2010 but also no bail application was pending at that time. It is also pertinent to point out that when the detenu was actually found in possession of 10 kgs. of ganja, ordinarily, bail would not have been granted. In such circumstances, the observation of the Detaining Authority is without any basis or materials much less cogent materials which the law would requite. On these grounds, the detention order has got to be set aside.
6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenue was found in possession of 10 kgs. of ganja on 9th February, 2010, she was arrested and a case came to be registered in Crime No.22 of 2010 for the offences under Sections 8(c) read with 20(b)(ii)(B) of N.D.P.S. Act and she was remanded to judicial custody, the Detaining Authority, on scrutiny of materials available, has made the order under challenge after recording its subjective satisfaction that the activities of the detenue were prejudicial to the maintenance of public order and public health.
8. As could be seen from the materials available on record, it is clear that the detenue was found in possession of 10 kgs. of ganja on 9th February, 2010 at 15.00 hours and the same was recovered under the cover of mahazar and thereafter, she was arrested on the same day at 16.45 hours and thereafter, a case in Crime No.22 of 2010 was registered at 17.30 hours. But the arrest memo as found in page No.82 of the booklet contains Crime No.22 of 2010. Had really the case was registered at about 17.30 hours in Crime No.22 of 2010, the said Crime number could not have been mentioned in the arrest memo which was claimed to have been prepared at about 1645 hours. Hence, it would require a clarification at that juncture. But the Authority has failed to do so.
9. Apart from this, the detenue has moved for bail application in Crime No.22 of 2010 before the Special Court for E.C. and N.D.P.S. Act Cases, Coimbatore in C.M.P. No.207 of 2010 and the same was dismissed on 31.3.2010. When the detention order was passed on 7.4.2010, not only bail application filed by the detenue was dismissed on 31.3.2010 but also no bail application was pending at that time. It is also pertinent to point out that when the detenu was actually found in possession of 10 kgs. of ganja, ordinarily, bail would not have been granted. The observation of the Detaining authority is only an expression of the impression in the mind of the Authority and only an inference and that too without any basis or materials much less cogent material as the law would require. On these grounds, the detention order has got to be set aside.
10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in C.No.09/G/IS/2010 dated 7.4.2010. The detenue, namely, S. Shanthi, who is now confined in Central Prison, Coimbatore is directed to be set at liberty forthwith unless her custody/detention i, s required in connection with any other case.
ssa.
To
1.The Secretary to the
Government, Home,
Prohibition and Excise Department,
Fort St. George,
Chennai 600 009.
2. The Commissioner of Police,
Coimbatore City.
3. The Deputy Superintendent of Police,
NIB CID,
Coimbatore