(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges the order of the first respondent made in his proceedings in No.74/BDFGISSV/2008 dated 8.9.2008 whereby the petitioner's husband 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".
2. The Court heard the learned counsel appearing for the petitioner and looked into all the materials available including the order under challenge.
3. Pursuant to the recommendation made by the sponsoring authority that the detenu was involved in three adverse cases viz., Crime No.27/2006 under
<act id=5LGxPokB_szha0nWENAC section=8>Sections 8(c) </act>r/w 20(b)(ii)(A) NDPS Act 1985 registered by B 15 Madhichiam Police Station; Crime No.908/2006 under
<act id=5LGxPokB_szha0nWENAC section=8>Sections 8(c) </act>r/w 20(b)(ii)(A) NDPS Act 1985 registered by E2 Madhichiam Police Station; Crime No.1046/2007 under
<act id=5LGxPokB_szha0nWENAC section=8>Sections 8(c) </act>r/w 20(b)(ii)(A) NDPS Act 1985 registered by E2 Madhichiam Police Station and in one ground case in Crime No.817/2008 under Sections 8 C r/w 20(b)II(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 registered by E2 Madhichiam Police Station, the detaining authority recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and public health and that he should be detained as a "Drug Offender" and accordingly, made the order of detention, which is the subject matter of challenge before this Court.
4. Assailing the order of detention, learned counsel appearing for the petitioner raised the following grounds:-
(i) Firstly, the bail application in Crl.M.P.No.510/2008 filed in the ground case in respect of Crime No.817/2008 was dismissed by the Special District and Sessions Court for Essential Commodities and Narcotic Drugs and Psychotropic Substances Act Cases, Madurai on 27.8.2008. Thereafter, he had not filed any bail application either in the ground case or in the adverse cases but the detaining authority has stated in its order that there was real possibility of the detenu coming out on bail. Such an observation was made without any material or basis whatsoever. It was only an apprehension in the mind of the detaining authority.
(ii) According to the materials available on record, the detenu was found in possession of 1.5 kg of ganja at 13.00 hours on 13.8.2008 and he was also arrested according to the prosecution. The case was registered at 15.15 hours in Crime No.817/2008. The arrest card was prepared at the place of occurrence, according to the prosecution. If to be so, the arrest card should not have contained crime number but the arrest card contained crime number. Under the circumstances, a clarification should have been sought for by the detaining authority but not done so.
(iii) Thirdly, the detenu was found to be in possession of the contraband and there were two accused involved in the case and two recoveries were made, according to the prosecution. If to be so, two samples should have been taken but only one sample was sent for analysis. Under the circumstances, the detaining authority should have called for a clarifications but not done so.
5. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
6. After hearing the submissions and looking into the materials available, the Court has to necessarily agree with the learned counsel for the petitioner to set aside the order of detention on the three grounds.
7. On the date when the order came to be passed, there was not even one bail application filed or was pending before any Court of criminal law. Even bail application filed in the ground case was also dismissed as stated above. But the detaining authority has stated in its order that there was real possibility of the detenu coming out on bail. Such an observation was made without any material or basis whatsoever. It was only an apprehension in the mind of the detaining authority and mere apprehension would not be sufficient to pass an order of detention. To pass such an order, the Act requires a specific material, which should impel the authority to make such an observation. In the absence of such material, making such an observation is without any basis and hence, the order of detention has got to be set aside.
8. Insofar as the second ground raised, according to the investigating agency, when the detenu was found in possession of 1.5 kg ganja at bout 13.00 hours, the arrest card was prepared. The case was registered in the Police Station at 15.15 hours. Naturally, the crime number could not have found place in the arrest card but the arrest card contained the crime number, which would casts a doubt whether the arrest card would have come into existence as put- forth by the investigating agency. Under the circumstances, the detaining authority should have called for a clarification but not done so.
9. Equally, when the prosecution came with the story that there were two accused in Crime No.817/2008 and two recoveries were made, two samples should have been taken but only one sample was sent to analysis. If to be so, the detaining authority should have asked for clarification as to what happened to the second sample but not done so.
10. On all the three grounds referred to above, 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 he is required in connection with any other case. The Habeas Corpus Petition is allowed.
asvm To
1.The Commissioner of Police, Madurai City, Madurai.
2.The State of Tamil Nadu, rep. by its Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, Chennai - 9.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.