(Order of the Court was made by M.CHOCKALINGAM, J) Challenge is made to the order of the first respondent made in No.59/BDFGISSV/2008 dated 15.7.2008 whereby the mother of the petitioner, by name, Karuppayee 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) terming her as a "Drug Offender".
2. The Court heard Mr. R.Anand, learned counsel appearing for the petitioner, looked into the materials available including the order under challenge.
3. It is not in controversy that pursuant to the recommendations made by the sponsoring authority that the detenue, Karuppayee was involved in seven adverse cases viz., in Crime No.909/2006 under Section 8(C) r/w 20(b)(ii)(b) NDPS Act 1985, Crime No.1137/2006 under
<act id=5LGxPokB_szha0nWENAC section=8>Sections 8(c) </act>r/w 20(b)(ii)(b) NDPS Act 1985, Crime No.1354/2006 under
<act id=5LGxPokB_szha0nWENAC section=8>Sections 8(c) </act>r/w 20(b)(ii)(a) NDPS Act 1985, Crime No.8(c) r/w 20(b)(ii)(b) NDPS Act 1985, Crime No.1351/2007 under
<act id=5LGxPokB_szha0nWENAC section=8>Sections 8(c) </act>r/w 20(b)(ii)(a) NDPS Act 1985, Crime No.8(c) r/w 20(b)(ii)(b) NDPS Act 1985 and Crime No.8(c) r/w 20(b)(ii)(A) NDPS Act 1985 registered in D2 Sellur Police Station, and in one ground case in Crime No.858/2008 u/s.8(c) r/w20(b)(ii)(b) NDPS Act registered in D2 Sellur Police Station, for an incident that took place on 11.6.2008, looking into all the materials available, the detaining authority recorded his satisfaction that the activities of the detenue were prejudicial to the maintenance of public order and public health and that she should be detained under the provisions of the Tamil Nadu Act 14/1982 terming her as a "Drug Offender" and accordingly, made the order, which is the subject matter of challenge.
4. Mr.R.Anand, learned counsel appearing for the petitioner in his sincere attempt assailing the order, brought to the notice of the Court, the following grounds:-
(i) Firstly, the order of detention came to be passed by the detaining authority on 15.7.2008 and even before passing the order of detention, a pre- detention representation was made on 16.6.2008 itself and the same was considered and rejected but a copy of the said rejection was not supplied to the detenue. A perusal of the order under challenge indicates that it was also a document relied on. If to be so, a duty is cast up on authority for supply of the said document but not done so.
(ii) Secondly, prior to the detention order, the detenue filed a petition in Crl.O.P.(MD)No.2887 of 2008 under
Section 482 of Cr.P.C. before this Court. By order dated 4.8.2008, it was directed that the detenue should not be harassed on the false allegations made. While such an order was passed, the sponsoring authority should have placed all the connected materials before the detaining authority for perusal. This has neither been done nor a copy was actually supplied to the detaining authority.
(iii) Thirdly, a perusal of the materials would make it clear that on 11.6.2008, when the detenue was arrested, she was found in possession of 20 packets of ganja each weighing 5 gms and out of it, two samples were taken out, which were weighing 50 grams each and they were sent for analysis through Court but the analysis report clearly indicates that what was received was 38 grams. If to be so, the detaining authority should have called for clarification but failed to do so.
5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. From the scrutiny of the materials, it is quite clear that pursuant to the recommendation of the sponsoring authority that the detenue was involved in seven adverse cases and in one ground case as referred to above, the detaining authority passed the order of detention on 15.7.2008. It is not in dispute that there was a pre-detention representation made on 16.6.2008 and the same was also rejected and the same is found mentioned in the order. Therefore, it would be quite clear that it was a relied on document. Naturally, one would expect a copy of the same should be served on the detenue but there is no material available to indicate that the same was served. Hence, it would certainly affect the order under challenge.
6. Further, the detenue approached this Court by filing a petition in Crl.O.P.(MD)No.2887 of 2008. This Court by order dated 4.3.2008 made the order, which runs as follows:-
"4. In view of the submissions made by both sides and also the reasons assigned by the petitioner in the affidavit, this Court is constrained to direct the second respondent police not to harass the petitioner on the basis of any complaint preferred against her except dealing with the matter in accordance with law, by strictly following the procedures and guidelines stipulated by the Hon'ble Supreme Court in D.K.Basu Vs. State of West Bengal (AIR 1997 SC 610)." While such an order was passed, a duty is cast upon the sponsoring authority to place all the materials and in particular, that order before the detaining authority but nothing is found in the order indicating that connected records were placed before the detaining authority and thus, the sponsoring authority did not enable the detaining authority to appraise the situation correctly.
7. Apart from that, as rightly pointed out by the learned counsel appearing for the petitioner from the materials, it could be seen that on 11.6.2008, the ground case came to be registered in Crime No.858/2008 and when she was arrested on the same day, she was found in possession of 20 packets of ganja each weighing 5gms. Out of which, two samples of 50 grams each was taken and it was also indicated that those samples were sent for analysis but the analysis report as could be seen in page No.162 of the counter affidavit reveals that, samples received was weighing only 38 grams. It is quite clear that this was taken out of the alleged recovery of ganja and the same was supplied for analysis. If to be so, the detaining authority should have called for clarification in that regard but not done so. If the materials were not properly placed before the detaining authority, the Court is of the considered opinion that, he should have asked for it or even the scrutiny of the detention order would indicate non-application of the mind on the part of the detaining authority as referred to above and thus, either way, it affects the order under challenge. Hence, the order under challenge has got to be set aside.
8. Accordingly, the order of detention is set aside and the detenue is directed to be set at liberty forthwith unless she is required in connection with any other case in accordance with law. Accordingly, the Habeas Corpus Petition is allowed.
asvm To
1.The Commissioner of Police, Madurai City.
2.The Secretary to the Government, Home, Prohibition and Excise Department, Chennai - 9.
3.The Inspector of Police, D2, Sellur (L & O) Police Station, Madurai City.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.