BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/04/2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE M.VENUGOPAL H.C.P.(MD) No.625 of 2008 Zainambu .. Petitioner vs. 1.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli. 2.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009. 3.The Inspector of Police, Shencottai Police Station, Tirunelveli District. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to direct the respondents to produce the body of detenu namely Durai @ Mydeen before this Court who is now detained in the Central Prison, Palayamkottai in pursuant to the detention order passed by the 1st respondent M.H.S.Confdl.No.69/2008 dated 28.4.2008 to call for the records and quash the same and release the detenu at liberty forthwith. !For petitioner ... Mr.N.Mohideen Basha ^For respondents... Mr.N.Daniel Manoharan Addl.Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
This Writ Petition challenges the order of the first respondent dated
28.4.2008 made in M.H.S.Condfl No.69/2008 whereby the order of detention was
made 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) against the detenu terming him as a “Drug Offender”.
2. The Court heard the learned counsel for the petitioner and looked into
the affidavit filed in support of the petition and also the counter affidavit
filed by the State.
3. Admittedly, pursuant to the recommendation made by the sponsoring
authority that the detenu, husband of the petitioner herein was involved in two
adverse cases viz., in Crime No.36 and 37 of 2006 both under Sections 8(c) r/w
20(b)(ii)(A) Narcotic Drugs and Psychotropic Substance Act registered in
Shenkottai Police Station and Crime No.834 of 2007 under Sections 8(c) r/w
20(b)(ii)(A) Narcotic Drugs and Psychotropic Substance Act and involved in one
ground case in Crime No.126 of 2008 under the same provisions of the Act, the
detaining authority after recording satisfaction that the activities of the
detenu were prejudicial to the maintenance of the public order and public health
made the order under challenge terming the detenu as a “Drug Offender” as
defined under the Act, which is the subject matter of challenge.
4. Learned counsel for the petitioner assailed the order of detention on
the following grounds:-
(i) Firstly, as per the available materials, it could be seen that the
detenu was arrested in Crime No.126 of 2008 by Shenkottai Police Station on
12.4.2008. According to the arrest card, he was found in possession of ganja
weighing 1 kg and 130 grams. As per the order, it could be seen that he was
taken to the Police Station and thereafter, the case came to be registered in
Crime No.126 of 2008. Surprisingly, the arrest card, which came into existence
at the place of arrest, contain Crime Number and thus, it would be indicative of
the fact that the fact of arrest and recovery could not have taken place as
found in the order of detention. If to be so, the detaining authority should
have called for an explanation from the sponsoring authority but failed to do
so. Consequently, even as per the arrest card in Crime No.126 of 2008, the
total quantity of ganja that was recovered was 1 kg and 130 grams but the
analyst report reveals that the quantity received for analysis was 1 kg and 340
grams and the detaining authority should have called for explanation how this
discrepancy crept in but did not do so.
(ii) The order under challenge came to be passed on 28.4.2008. The matter
should be placed for the purpose of consideration before the Advisory Board
within a period of three weeks but the Board itself was constituted only on
12.6.2008 and the Advisory Board also considered and passed orders on 16.6.2008.
The law of preventive detention mandates that the materials should be placed
before the Advisory Board for the purpose of consideration within a period of
three weeks but it was not done so.
(iii) Lastly, there was inordinate delay in considering both the
representations made. All the grounds referred to above would be sufficient to
set aside the order of the detention, according to the learned counsel for the
petitioner.
5. The Court heard the learned counsel for the respondent/State on the
above contentions and paid its anxious consideration on the submissions made.
6. As stated above, the order under challenge would clearly indicate that
the detaining authority had considered all the materials available before
recording his subjective satisfaction that the detenu should be termed as a
“Drug Offender” since he was involved in two adverse cases and one ground case.
The ground case was registered in Crime No.126 of 2008 by the Shenkottai Police
Station on 12.4.2008. The order would read that at the time of intercepting the
detenu, he was found in possession of ganja weighing 1 kg 130 grams and some
sample was taken over and then he was taken to the Shenkotta Police Station and
at 15.30 hours and the case came to be registered in Crime No.126 of 2008 under
Section 8(c) read with 20(b)(ii)(B) Narcotic Drugs and Psychotropic Substances
Act. It would be quite clear that at the place of arrest when he was
intercepted, he was found in possession of 1kg and 130 grams. After seizure of
the same under mahazar, he was taken to the Police Station and the case came to
be registered in Crime No.126 of 2008 under the provisions referred to above.
It is needless to say that the Athatchi for recovery of contraband should have
been prepared only at the place of seizure and only thereafter, he should have
been brought to the Police Station and the case should have been registered but
a perusal of the arrest card would indicate that it contained the crime number
and thus, preparation of arrest card at the place of seizure is highly doubtful.
Added circumstances was that while so Shenkottai Police Station registered the
case in Crime No.126 of 2008 pursuant to the seizure of 1 kg and 130 grams of
ganja from the detenu at the place where he was intercepted. Analyst report
reveals that the item which was placed for analysis was weighing 1 kg and 340
grams and the quantity is found to be on the higher side. In respect of this
aspect, the detaining authority should have called for clarification before
passing the order but failed to do so. This would be clearly indicative of the
fact of non-application of mind on the part of the detaining authority.
7. Further, in the instant case, as rightly pointed out by the learned
counsel for the petitioner, the detaining authority passed the order on
28.4.2008 and it should have been placed before the Advisory Board within a
period of three weeks for the purpose of consideration. However, the Advisory
Board itself was constituted only on 12.6.2008. The order came to be passed on
16.6.2008. The delay caused would amount to violation of the mandatory
provisions of the law of preventive detention.
8. Added circumstances is the inordinate delay caused in considering the
representations was unexplained. Insofar as the first representation is
concerned, it was made on 27.5.2008, the Hon’ble Minister for Public Works & Law
dealt with it on 5.6.2008 and the rejection letter was prepared only on
10.6.2008 and thus, there was delay of 6 days and since 7.6.2008 and 8.6.2008
were found to be holidays, there was 4 days delay. Apart from that in respect
of the second representation, remarks were called for on 16.6.2008 and the
remarks were received only on 23.6.2008. Thus, there was 7 days delay, which
remain unexplained. No doubt, this delay would cause prejudice to the interest
of the detenu.
9. Thus, all the above grounds of attack, in the considered opinion of the
Court, would be sufficient to set aside the order of detention. Hence, 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 in accordance
with law. The Habeas Corpus Petition is allowed accordingly.
asvm
To
1.The District Collector &
District Magistrate,
Tirunelveli District,
Tirunelveli.
2.The Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
3.The Inspector of Police,
Shencottai Police Station,
Tirunelveli District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.