M BUHARI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This Habeas Corpus Petition has been filed against the order of detention passed by the first respondent in respect of the detenu M.Buhari under Section 3(1)(i) of COFEPOSA Act, 1974. The said order of detention was passed on the subjective satisfaction of the first respondent that clamping such an order became necessary for preventing the detenu from smuggling of goods in future. The said order of detention under COFEPOSA Act, 1974 is challenged in this Habeas Corpus Petition by the detenu himself.

(2.) The facts leading to the filing of the present Habeas Corpus Petition, can be briefly, stated thus:- One Shahul Hameed holding Passport No.E1079207 dated 20.03.2002 was caught by the officers of the Directorate of Revenue Intelligence, Coimbatore when they checked his baggage based on specific intelligence that he was attempting to smuggle huge quantity of Ketamine Hydrochloride keeping the same concealed in his baggage. On being questioned, he revealed the involvement of the petitioner herein in the above said smuggling of Ketamine Hydrochloride and the fact that the petitioner used the above said Shahul Hameed, a close relative of the petitioner for the purpose of carrying the contraband. The samples drawn from the alleged contraband seized from the baggage of Shahul Hameed, on being tested in the Forensic Science Department, Government of Tamil Nadu, Narcotics Division, Chennai, conformed to the definition of Ketamine Hydrochloride. The detaining authority forming an opinion that Ketamine Hydrochloride was a restricted item for export and could be exported only after obtaining a No Objection Certificate from the Narcotics Commissioner, Gwalior, India, chose to pass the impugned order of detention.

(3.) Though several grounds have been raised assailing the order of detention, the learned counsel for the petitioner, mainly relies on the contention that there was non-application of mind on the part of the detaining authority as to whether Ketamine or Ketamine Hydrochloride is covered by the Notification No.67(RE-2007)/2004-2009 dated 27.12.2007; that there is also non-application of mind on the part of the detaining authority regarding the definition of contraband, which is evident from the fact that it has been defined as Ketamine at one place and as Ketamine Hydrochloride at another place and that the detaining authority failed to consider that the restriction regarding export, as per the said notification, was imposed only in respect of Ketamine and not in respect of Ketamine Hydrochloride.