(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges the order of detention passed by the second respondent made in Crl.M.P.No.22/2008/Drug Offender/dated 17.9.2008 whereby the petitioner was 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. Pursuant to the recommendation made by the sponsoring authority that the detenu was involved in four adverse cases as stated in the order of detention and in one ground case in Crime No.184/2008 under
Section 8(c) r/w 20(b)(ii)(B) NDPS Act, 1985 registered by Srivilliputhur Taluk Police Station when he was found in possession of 1250 grams of ganja, after looking into all the materials made available, the detaining authority came to the conclusion that the activities of the detenu were prejudicial to the human life and public health and should be ordered to be detained under the prevention of the detention law branding him as a "Drug Offender" and accordingly, made the order under challenge which is the subject matter of challenge before this Court.
3. Assailing the order of detention, the learned counsel brought to the notice of the Court, the following three grounds:-
(i) Firstly, in the instant case, ground case came to be registered in Crime No.184/2008 by Srivilliputhur Taluk Police Station at about 13.00 hours and the occurrence took place whe the detenu was found in possession of 1250 grams of ganja and the same was recovered and he was arrested at 11.30 hours. The arrest card contained crime number also. Had it been correct that the arrest card prepared at the place of occurrence where the detenu was arrested, it should not contain crime number. In this regard, a clarification should have sought for by the detaining authority but not done so.
(ii) Secondly, at the time when the order came to be passed on 17.9.2008, no bail application was filed by the detenu in Crime No.184/2008 before any Court of criminal law but the detaining authority has stated in its order that there was real possibility of the detenu coming out on bail and such an observation was made without any material or basis whatsoever.
(iii) Thirdly, there was undue delay in consideration of the representation made by the detenu to the authorities.
4.The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
5. From the submissions made and as could be seen from the materials available, the detenu was involved in four adverse cases and in one ground case as referred to above. As per the materials available, the arrest card would indicate that he was arrested and contraband was recovered at about 11.30 hours and the case came to be registered thereafter. When he was brought to the Police Station i.e. Srivilliputhur Taluk Police station in Crime No.184/2008 at bout 13.00 hours, the arrest card contained crime number. Had it been true that the arrest card came into existence at the time of arrest and seizure of contraband at about 11.00 hours, it could not have contained crime number at all but contained so. Then, naturally, one would expect a clarification to be called for but the detaining authority had not sought for clarification at all. Hence, the order of detention has got to be set aside.
6. Insofar as the second ground raised by the learned counsel is concerned, it is an admitted position that no bail application was filed or was pending in the ground case in Crime No.184/208 at the time the order of detention came to be passed. But, the detaining authority has stated in its order that there was real possibility of the detenu coming 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 would impel the authority to make such an observation. In the absence of such material, making such an observation is without any basis and hence, on this ground also, the order of detention has got to be set aside.
7. Apart from that, the Court is able to notice delay in consideration of the representation made by the detenu. Representation was actually received on 17.10.2008; remarks were called for on 24.10.2008 but the remarks were only received on 3.11.2008. Thus, there was delay of 9 days. According to the learned Additional Public Prosecutor, there was 3 intervening holidays. Even so assuming, there was 6 days delay, which remain unexplained. In the absence of cogent and convincing reasons for the delay in consideration of the representation, it has got to be taken in favour of the petitioner/detenu since it has caused prejudice to the right of the detenu. On this ground also the order of detention has got to be set aside.
8. 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.Secretary to Government, Home Prohibition and Excise (XVI) Department, Fort St.George, Chennai - 600009.
2.District Magistrate and District Collector, Virudhungar District.
3.The Superintendent of Prison, Madurai Central Prison, Madurai.
4.The Secretary, Advisory Board, Coovam House, Swamy Sivanandha Salai, Chennai - 600 002.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.