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Judgment
M. Chockalingam, J.—Challenge is made to the order of the first respondent dated 24.05.2008 made in C.M.P.No.12 of 2008 whereby
one Asaithambi, father of the petitioner herein was detained under the provisions of the Tamil Nadu Act 14 of 1982 after being termed as ''Drug
Offender'' as defined under the Act.
The Court heard the learned Counsel for the petitioner and the learned Additional Public Prosecutor on behalf of the respondents. All the
materials including the order under challenge, the grounds of attack and also the counter affidavit filed by the respondents'' side are looked into.
The order under challenge came to be passed by the detaining authority after looking into all the materials placed by the sponsoring authority
that the detenu was involved in Cr. No. 16/2003 u/s 8 r/w. 20(b)(ii) of NDPS Act and the same was registered by the Madurai NIB, CID, Unit
on 29.05.2003; the second case was registered in Cr. No. 192/2004 u/s 8(c) r/w. 20(b)(ii)(B) of NDPS Act by the Theni NIB, CID, Unit on
16.11.2004; the third case was registered in Cr. No. 146/2006 u/s 8(c) r/w 20(b)(ii)(a) of NDPS Act by the Melur Police Station, Madurai
District on 05.04.2006; the fourth case was registered in Cr. No. 104/2006 u/s 8(c) r/w. 20(b)(ii)(B) of NDPS Act by the Theni NIB, CID Unit
on 16.06.2006 and the fifth case was registered in Cr. No. 588/2007 u/s 8(c) r/w. 20(b)(i) of NDPS Act by the Melur Police Station, Madurai
District on 29.08.2007.
Apart from the above said five adverse cases, one ground case came to be registered in Cr. No. 84/2008 u/s 8(c) r/w. 20(b)(ii)(B) of NDPS
Act 1985 by the Madurai Narcotic Intelligence Bureau CID, Madurai. The detenu was arrested on 15.05.2008.
After looking into all the materials, the detaining authority recorded his subjective satisfaction that the activities of the detenu were prejudicial to
the maintenance of the public order and hence he should be detained under the provision of the Act 14 of 1982, which is the subject matter of
challenge before this Court.
Advancing his arguments on behalf of the petitioner the learned Counsel for the petitioner raised three points as follows:
(i) The first point is that in so far as five adverse cases are concerned the detenu was granted bail. In so far as the ground case is concerned i.e. Cr.
No. 84/2008, though no bail application was filed, the detaining authority has pointed out in the detention order that there was a real possibility of
his coming out on bail by filing a bail application before the same Courts or Higher Courts. It was without any materials whatsoever.
(ii) The second point urged by the learned Counsel for the petitioner is that the first adverse case came to be registered against the detenu on
29.05.2003 in Cr. No. 16/2003, but the detaining authority has pointed out that the charge sheet was filed on 28.04.2003 which could not have
been taken place at all, which is an indication of the non application of mind by the detaining authority.
(iii) The third point urged by the learned Counsel for the petitioner is that there was an inordinate delay in considering the representation made by
the detenu before the detaining authority and thus these three grounds are suffice to set aside the detention order.
The Court paid its anxious consideration to the submissions made on either side. It is not in controversy that pursuant to the five adverse cases
registered against the detenu and one ground case registered on 15.05.2008 in Cr. No. 84 of 2008, the detenu was arrested on the very same
day. On the materials placed by the sponsoring authority before the detaining authority, the detaining authority has passed the order under
challenge. After looking into the materials, this Court is of the considered view that the detention order suffers from the following points;
i) Firstly, in the ground case, though the detenu was arrested on 15.05.2008, the detention order came to be passed on 24.05.2008. During the
interregnum period, though no bail application was filed or any bail application was pending before any Court of Criminal law, the detaining
authority has pointed out that there was a real possibility of the detenu coming out on bail by filing bail application before the same Court or Higher
Courts. Thus it is a quite indicative of the fact that the observation was made by the detaining authority without any material and also it is baseless
and it would be indicative of his apprehension.
ii) Secondly, a perusal of the materials available would clearly indicate that the first adverse case was registered on 29.05.2003 in Cr. No.
16/2003 and charge sheet would have been filed after the investigation was over. But, the order reads that the charge sheet was laid on
28.04.2003 itself. Thus, it could not have been taken place at all and it would be indicative of the non application of mind on the part of the
detaining authority.
iii) Thirdly, there was actually inordinate delay in considering the representation. From the proforma filed by the State, it could be seen that the
representation made by the petitioner was received by the authority on 01.07.2008, remarks was called for on 02.07.2008, remainder was
addressed on 08.07.2008, but the remarks were received only on 17.07.2008 in which there was a delay of 15 days. Out of the 15 days, it is
stated that there was six intervening public holidays, according to the learned Additional Public Prosecutor. So, there was a delay of 9 days which
remains unexplained. It is needless to state that it would cause prejudice to the interest of the detenu.
All put together in the considered opinion of the Court, it would be suffice to set aside the order under challenge. Hence, this Court has made
undone by upsetting the order under challenge.
Accordingly, the Habeas Corpus Petition is allowed and the detention order C.M.P. No. 12 of 2008 dated 24.05.2008 passed by the first
respondent is quashed. The detenu is directed to be set at liberty forthwith unless his presence, in accordance with law, is required in connection
with any other case.