Zainambu vs The District Collector and District Magistrate, The Secretary to the Government, Home, Prohibition and Excise Department and The Inspector of Police

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"".

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.

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.

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.

The Court heard the learned Counsel for the respondent/State on the above contentions and paid its anxious consideration on the submissions

made.

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 u/s 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.

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.

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.

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.