Murugan vs The Secretary to Government, Prohibition and Excise Department and The District Magistrate and District Collector

D. Murugesan, J.—The petitioner himself is the detenu. He has questioned the detention order dated 3.3.2008 passed by the District

Magistrate and District Collector, Madurai District/2nd respondent herein in exercise of the power conferred under Sub-section 3(1) of the Tamil

Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas Immoral Traffic Offenders, Sand

Offenders, Slum Grabbers and Video Pirates Act 1982 (Tamil Nadu Act 14 of 1982) read with the order issued by the Government in G.O.(D)

No. 14, Prohibition and Excise (XVI) Department, dated 18.1.2008 under Sub-section 3(2) of Section 3 of the said Act.

The learned Counsel appearing for the petitioner has raised two grounds in challenging the detention order. One ground is to the effect that

inasmuch as the detenu was arrested in the ground case on 24.2.2008 and was produced before the learned Judicial Magistrate, Thirumangalam,

who remanded him to custody till 7.3.2008, the detaining authority has referred to the said remand as if it was made by the learned District Munsif-

cum-Judicial Magistrate, Usilampatti. The above awareness of the detaining authority, as found in paragraph 5 of the grounds of detention,

discloses a total non-application of mind on the remand of the detenu and therefore, the detention order is vitiated. The second ground is to the

effect that in paragraph 3 of the grounds of detention, the detaining authority has referred that the detenu is habitually committing crimes of selling

Ganja, but on the other hand, in all the four adverse cases, the detenu was charged only for possession of Ganja and even in the ground case, he

was charged only for the offence u/s 8(c) read with 20(b)(ii)(B) of NDPS Act for possession of Ganja. Therefore, it is the contention of the

learned Counsel for petitioner that the act of mere possession of Ganja cannot be considered as an act prejudicial to the public order or public

health and hence, the detention order cannot be clamped on the petitioner. In support of the said submission, the learned Counsel appearing for the

petitioner has relied upon the decision of this Court reported in 2006 1 CTC 654, Gurusamy v. The Secretary to Government of Tamil Nadu,

Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600009 and Anr.

We have heard the learned Additional Public Prosecutor on the submissions made by the learned Counsel appearing for the petitioner.

In so far as the 1st contention is concerned, it is true that in paragraph 5 of the grounds of detention, the detaining authority has referred to the

fact that in the ground case, the detenu has been remanded to judicial custody by the District Munsif-cum-Judicial Magistrate, Usilampatti in order

to become aware that the detenu was on remand on the date of detention. However, the fact remains that the detenu was arrested on 24.02.2008

and was produced before the Judicial Magistrate, Thirumangalam and remanded to custody till 7.3.2008. The detaining authority in paragraph 3 of

the grounds of detention has referred to the said fact, namely, the arrest and production of the detenu before the learned Judicial Magistrate,

Thirumangalam, who remanded him on 24.02.2008 and the detenu being lodged in Central Prison, Madurai. That being the position, merely

because a wrong court has been mentioned in paragraph 5 would not invalidate the awareness of the detaining authority as to the fact that the

detenu was on remand on the date of detention. Hence, we find no merits in the first contention raised by the learned Counsel for the petitioner and

the said contention is rejected.

In so far as the second contention is concerned, it is true that in all cases, the detenu was found in possession of Ganja. The detention order is

passed on the ground that the said act of possessing ganja would amount to an activity prejudicial to the maintenance of public health. In Gurusamy

v. The Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600009 and Anr. cited

supra, the Division Bench of this Court has held as follows :

Mere possession in every case cannot amount to ""stocking"" of some articles. Sale of contraband drug only is likely to cause grave or widespread

danger to life or public health.

That was a case, where the detenu was found in possession of only a small quantity of Ganja, namely 50 grams, 100 grams and 50 grams of ganja

in adverse cases as well as in the ground case. Therefore, this Court had observed that mere possession of 50 grams of ganja in each case or 100

grams of ganja, as the case may be, cannot be considered to be one for selling the Ganja to the public and such an activity would be prejudicial to

the public health. Even in the said judgment, it has not been held as universal rule that in all cases of possession of ganja, the detention order cannot

be passed. In fact in paragraph 5 of the said judgment, the Division Bench has held that �If a person is found in possession of a minimal quantity,

it cannot be characterised as if he has stocked such item�, meaning thereby that in the event of a person found in possession of a larger quantity

of ganja, a reasonable presumption/inference can be drawn that such possession of a larger quantity of ganja is meant only for sale.

In the given facts and circumstances of the case, the petitioner was charged in Cr. No. 8/2007 of Thirumangalam Town Police Station for the

alleged offence u/s 8(c) read with 20(b)(ii)(B) NDPS Act, namely, the first adverse case for having found in possession of 1.100 Kg of Ganja. In

the ground case, he was found in possession of 2.100 Kg of Ganja. As rightly pointed out by the learned Additional Public Prosecutor on the fact

that a person was found in possession of a large quantity of Ganja, namely, more than 1 Kg in one adverse case and more than 2 Kgs in the

ground case, it must be inferred that such possession of ganja was only for sale or distribution by other means to the public and by such act, the act

of the person would be prejudicial to the public health. In fact, the provision u/s 2(1)(a)(ii) of the Act is meant only to prevent a person causing

widespread danger to life or public health. in the circumstances, we do not find any force in the contention of the learned Counsel appearing for the

petitioner to apply the above said decision of the Division Bench of this Court to the facts of this case.

D. Murugesan and M. Sathyanarayanan, JJ.

In view of our above discussion, both the grounds raised by the learned Counsel for the petitioner are rejected and consequently, the Habeas

Corpus Petition is dismissed.