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Judgment
M. Chockalingam, J.—This Writ Application challenges an Order of Detention made by the second respondent on 22.03.2010 whereby the
husband of 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"".
The Court heard the learned Counsel appearing for the petitioner and looked into all the materials available, in particular, the order under
challenge.
The detenu was involved in four adverse cases as follows:
Sl Police Station Section of law
No Cr. No. & Date
1 Virudhunagar West 8(c) read with 20(b)(ii)(A)
Police Station NDPS Act
Crime No. 765/2008
2 Virudhunagar West 8(c) read with 20(b)(ii)(A)
Police Station NDPS Act
Crime No. 576/2009
3 Virudhunagar West 8(c) read with 20(b)(ii)(B)
Police Station NDPS Act
Crime No. 827/2009
4 Virudhunagar West 8(c) read with 20(b)
Police Station (ii)(B) NDPS Act
Crime No. 1103/2009
Apart from that, the detenu was involved in one ground case registered by Virudhunagar West Police Station in Crime No. 280/2010 u/s 8(c) read
with 20(b)(ii)(B) Narcotic Drugs and Psychotropic Substances Act, 1985 on 6.3.2010 and he was arrested on the same day.
It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in four adverse cases
and in one ground case as referred to above, on scrutiny of the materials, the detaining authority has made the order under challenge branding him
as a ""Drug Offender"" after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order
and public health and the same is the subject matter of challenge before this Court.
The learned Counsel would put-forth three points in order to set aside the order under challenge.
(i) Firstly, the detenu has not moved any bail application in the ground case.
(ii) The detaining authority has not even stated whether there was any real or imminent possibility of the detenu coming out on bail. Thus, this would
clearly indicate that he has not applied his mind before recording subjective satisfaction.
(iii) In connection with the ground case, at about 8.15 hours, on 6.3.2010, the detenu was arrested where he was alleged to have been found in
possession of contraband. Actually, the case was registered by Virudhunagar West Police in Crime No. 280/2010 u/s 8(c) read with 20(b)(ii)(B)
Narcotic Drugs and Psychotropic Substances Act, 1985 at 9.45 hours but the arrest memo alleged to have been prepared at the place where he
was arrested, contained the crime number. If the arrest was made as put-forth by the prosecution, the crime number could not have taken place in
the arrest memo. Under the circumstances, the detaining authority should have called for an explanation from the sponsoring authority but failed to
do so.
The Court heard the learned Additional Public Prosecutor on the above contention.
Admittedly, the order under challenge came to be passed on the recommendation made by the sponsoring authority that the detenu was
involved in four adverse cases and one ground case as referred to above.
In the instant case, when the detaining authority has not even stated that there was a real or imminent possibility of the detenu coming out bail, he
has stated that ""there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future, which are
prejudicial to maintenance of public health and public order."" This observation was made without any basis or material much less cogent material.
Under the circumstances, the order of detention is infirm.
It is also admitted by the State that the detenu was arrested on the same day i.e. on 6.3.2010 at 8.15 hours and the FIR came into existence at
9.45 hours. If really, the arrest memo came into existence as put-forth by the department, the crime number could not have been mentioned therein
but the explanation now tendered before the Court is that there was a phone call from the authority who arrested the detenu and he got the crime
number from the police station and he also incorporated the same in the arrest memo. This explanation cannot be countenanced at this stage. When
such discrepancy was noticed by the detaining authority, the detaining authority is duty bound to call for an explanation and satisfy himself before
passing the order. It is not the contention what is expected at this stage but at the stage, before the order of detention came to be passed. Hence,
now the contention put-forth by the State cannot be accepted. On the above grounds, the order of detention has got to be set aside.
Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in
connection with any other case. The Habeas Corpus Petition is allowed.