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 H.C.P.(MD) No.644 of 2008 Veeranan .. Petitioner vs. 1.State of Tamil Nadu, rep. by its Secretary, Home, Prohibition and Excise (XVI) Department, Fort St.George, Chennai - 600 009. 2.The District Collector and District Magistrate, Theni District. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Secretary, Advisory Board, Coovam House, Omandurar Government Estate, Swami Sivanandha Salai, Chennai - 600002. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records connected with the Detention Order No.12/2008 dated 12.7.2008 and quash the same and direct the respondents to produce the body and person of the petitioner namely Veeranan, aged about 42 years, son of Pandi @ Aruva Pandi, now confined at Madurai Central Prison before this Court and set him at liberty forthwith. !For petitioner ... Mr.R.Alagumani ^For respondents ... Mr.Daniel Manoharan Addl.Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
This Writ Application challenges an order of the second respondent made in
Detention Order No.12/2008 dated 12.7.2008 whereby the petitioner 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 five adverse cases viz., FIR No.65/04 under Section
8(c) r/w 20(b)(II)(A) NDPS Act; FIR No.368/2004 u/s.8(c) r/w 20 (b)(II)(A) NDPS
Act; FIR No.388/2004 u/s.8(c) r/w 20(b)(II)(A)NDPS Act; FIR No.12/2006 u/s.8(c)
r/w 20(b)(II)(A) NDPS Act; FIR No.189/2007 u/s.8(c) r/w 20(b)(II)(B) NDPS Act,
which were all registered by Rajathani PS and in one ground case in FIR
No.369/2008 under Sections u/s.8(c) r/w 20(b)(II)(B) NDPS Act registered by
Andipatti PS for the incident that took place on 19.6.2008 when the detenu was
found in possession of 3kg Ganja, after looking into the materials available,
the detaining authority recorded his subjective satisfaction that the detenu
acted in a manner prejudicial to the maintenance of Public Order and Public
Health and that he should be detained under the law of preventive detention and
accordingly, made the order of detention, which is the subject matter of
challenge before this Court.
4. The order under challenge is being assailed by the learned counsel for
the petitioner on the following two grounds:-
(i) Firstly, the case in FIR No.369/2008 under Sections 8(c) r/2
20(b)(II)(B) NDPS Act came to be registered by Andipatti PS at 15.30 hours on
19.6.2008. From the materials available, it could be seen that the detenu was
found in possession of 3 kg ganja at about 14.00 hours and he was arrested
immediately and that the ganja was recovered under the cover of “Athatchi”.
Thereafter, he was taken to the Police Station and the case was registered by
Andipatti PS. Had the recovery been made as put-forth by the investigating
agency, the arrest card and the “Athatchi” could not have contained crime number
but in the instant case, it casts a doubt whether the arrest card and “Athatchi”
could have been prepared at the place of recovery and arrest as alleged by the
investigating agency. Under the circumstances, the detaining authority should
have called for a clarification but not done so.
(ii) Equally, in the said ground case, no bail application was filed at
all till the passing of the order under challenge but the detaining authority
has stated in its order that there was a real possibility of the detenu coming
out on bail by filing a bail application before the same or higher Court. It is
only an apprehension in the mind of the detaining authority and mere
apprehension in the mind of the detaining authority would not be sufficient to
pass an order of detention. Hence, the order of detention has got to be set
aside.
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 made, the Court has to necessarily agree
with the learned counsel for the petitioner because in the instant case in FIR
No.369/2008 under Sections u/s.8(c) r/w 20(b)(II)(B) NDPS Act registered by
Andipatti PS for the incident that took place on 19.6.2008, where the detenu was
found in possession of 3kg Ganja, and was arrested on 19.6.2008 at about 14.00
hours and the ganja was recovered under the cover of “Athatchi and that he was
taken to the Police Station and thereafter, the case came to be registered on
the same day at 15.30 hours, but as rightly pointed out by the learned counsel
for the petitioner, the arrest card and “Athatchi” contained Crime Number.
Hence, it would cast a doubt in the mind of any person whether they could have
been prepared as put-forth by the investigating agency. Hence, the detaining
authority should have called for a clarification but the detaining authority has
miserably failed to do so.
7. Equally, no bail application was filed at all in the ground case but
the detaining authority has stated in course of the detention order that there
was a real possibility of the detenu coming out on bail by filing a bail
application before the same or higher Court. It would be an indicative of an
apprehension in the mind of the detaining authority and mere apprehension in the
mind of the detaining authority would not be sufficient to pass an order of
detention. There must be specific material in the hands of the detaining
authority to pass such an order of detention. In the instant case, no such
material was available. Hence, on this ground also, the order of detention has
got to be set aside.
8. 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 Secretary,
Home, Prohibition and Excise (XVI) Department,
Fort St.George,
Chennai – 600 009.
2.The District Collector
and District Magistrate,
Theni District.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai.
4.The Secretary,
Advisory Board,
Coovam House,
Omandurar Government Estate,
Swami Sivanandha Salai,
Chennai – 600002.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.