Perumayi vs State of Tamil Nadu

M. Chockalingam, J.—This Writ Application challenges an Order of Detention made by the second respondent on 07.03.2010 whereby the son of the petitioner, by name, Murugan, 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.

It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in six adverse cases as given below:

Sl Police Station and Section of No Crime Number law 1 Theni NIB - CID Unit u/s 8(c) r/w 20(b)(ii)(A) Crime No. 73/2008 of NDPS Act 2 Theni NIB - CID Unit u/s 8(c) r/w 20(b)(ii)(A) Crime No. 122/2008 of NDPS Act 3 Theni NIB - CID Unit u/s 8(c) r/w 20(b)(ii)(B) Crime No. 71/2009 of NDPS Act 4 Theni NIB - CID Unit u/s 8(c) r/w 20(b)(ii)(B) Crime No. 102/2009 of NDPS Act 5 Theni NIB - CID Unit u/s 8(c) r/w 20(b)(ii)(A) Crime No. 113/2009 of NDPS Act 6 Theni NIB - CID Unit u/s 8(c) r/w 20(b)(ii)(A) Crime No. 120/2009 of NDPS Act

and also involved in one ground case in Crime No. 14/2010 under Sections u/s 8(c) r/w 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act 1985 on the file of the Theni, Narcotic Intelligence Bureau - CID Station, 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 was prejudicial to the maintenance of public order and public health and the same is the subject matter of challenge before this Court.

Advancing the arguments on behalf of the petitioner, learned Counsel for the petitioner Mr. R. Alagumani, made the following submissions:

(i) Insofar as the ground case in Crime No. 14/2010 is concerned, the detenu had not moved any bail application before any Court of criminal law but, on the contrary, the detaining authority has stated in the order that there was a real possibility of the detenu coming out on bail, without any material muchless cogent material.

(ii) According to the materials available, the detenu was arrested at 13.45 hours when he was found in possession of contraband on 23.2.2010 and actually, the case was registered at about 15.00 hours as could be seen from the copy of the F.I.R. The arrest card contained Crime No. 14/2010. Had it been true that the arrest card was prepared at the time of arrest at about 13.45 hours, the crime number could not have been mentioned therein but the arrest card contained Crime No. 14/2010. Under the circumstances, the detaining authority should have called for an explanation from the sponsoring authority but failed to do so. Hence, the order of detention would become infirm.

(iii) The translated version of the grounds of detention was not properly done. Insofar as paragraph 5 of the order, in English version, it is stated that "I am aware that Thiru. Murugan is in remanded in connection with the Theni NIB - CID, Cr. No. 14/2010." But, when translated into Tamil version, this part has not been found therein. Thus, translated version is found to be discrepant. Hence, on this ground also, the order of detention has got to be set aside.

The Court heard the learned Additional Public Prosecutor on the above grounds.

As could be seen from the available materials, the detenu was involved in six adverse cases and in one ground case as referred to above. On the strength of the recommendation made by the sponsoring authority, the detaining authority has made the order under challenge after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and public health. Paragraph 5 of the order of detention reads as follows:

I am aware that Thiru. Murugan is in remanded in connection with the Theni NIB - CID, Cr. No. 14/2010 and has not moved any bail petition. I am also aware that there is a real possibility of his coming out of bail for the above case, since in similar cases bails are granted by the concerned Court or Higher Court after lapse of time. If he comes out on bail, he will indulge in future activities, which will be prejudicial to the maintenance of Public Order and Public Health. Further, the recourse to normal Criminal Law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of Public Order and Public Health. On the materials placed before me, I am satisfied that the said Thiru. Murugan is "Drug Offender" and there is real possibility that he would indulge in such activities in future and there is compelling necessity to keep him under detention as per the provisions of Tamil Nadu Act 14/1982.

From the reading of the above, it would be quite clear that the detenu had not moved any bail application in Crime No. 14/2010 before any Court of criminal law but on the contrary, the detaining authority has stated that there was a real possibility of the detenu coming out on bail. Hence, this observation made by the detaining authority was without any basis or material muchless cogent material. But, the law would expect that for recording subjective satisfaction sufficient material must be available but this was not available in the instant case. Thus, the order of detention has become infirm and on this ground, it has got to be set aside.

Equally, Crime No. 14/2010 was registered at the Theni Police Station at 15.00 hours as could be seen from the F.I.R and according to the NIB CID Department, the detenu was arrested at about 13.45 hours when he was found in possession of contraband. The arrest card, which according to the department, was prepared at the time of arrest, could not contain crime number but it continued so. Hence, the detaining authority should have called for an explanation but failed to do so. This would also indicate the non-application of mind on the part of the detaining authority.

Apart from the above grounds, the translated version was found to be defective as pointed out by the learned Counsel for the petitioner, which is noticed by the Court on comparison of both. All the above three grounds, in opinion of the Court, are sufficient to set aside the order of detention.

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.