RAVI ALIAS GANESHALINGAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This Writ Petition is filed by the detenu himself under Article 226 of the Constitution of India seeking for the issuance of a Writ of Habeas Corpus quashing the order of detention dated 12-3-1992 and to set him at liberty, The impugned order of detention was passed by the Secretary to Government, Prohibition and Excise Department, the first respondent herein in exercise of the powers conferred under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988), with a view to preventing the detenu from engaging in possession of narcotic drugs (hereon).

(2.) The brief facts which led to the passing of the impugned order and which are relevant for the disposal of this writ petition are as follows :- On 7-1-91 at 08.00 hours the detenu, who is a Srilankan National residing at 55, Colombodurai, Jaffna, Srilanka, and now residing at 86, Savadi Street, Pallavaram, Madras-43, was found in possession of a white paper packet containing heroin weighing 7 grams in his pant pocket near the main gate of Anna University, Sardar Vallabhai Patel Road, Madras. The Sub-Inspector of Police, Narcotic Intelligence Bureau, C.I.D., Madras-17 (Thiru S. Packiyaraj) arrested the detenu and two others and seized the heroin under cover of mahazar attested by witnesses. The detenu and two others were taken to the Narcotic Intelligence Bureau, C.I.D. Office, Madras-17 with the seized heroin powder and a case was registered in Narcotic Intelligence Bureau C.I. Crime No. 7 of 90 under S. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985). The detenu was produced before the XVII Metropolitan Magistrate, Saidapet, Madras 15 and was remanded to judicial custody and was lodged in the Sub-Jail, Saidapet. The opinion of the Chemical Examiner was sought with regard to the contraband heroin seized from the detenu and the report revealed that the seized contraband is Diacetyle Morphine and is derived from the opium alecaloid morphine (heroin). A final report was filed on 9-3-91 before the XVII Metropolitan Magistrate's Court, Madras. The case was taken on file in C.C. No. 1776 of 1991. It was committed to Sessions Court, Madras and it is pending trial in S.C. No. 109 of 1991 in the IX Additional Sessions Court, Madras. Subsequently the detenu was released on bail. On 25-10-1991 at 13.30 hours at 86, Savadi Street, Pallavaram, Madras-43, in the second floor, the Sub-Inspector of police, Narcotic Intelligence Bureau, Crime Branch, C.I.D., Madras (Thiru K. Ali Basha) and his party, on information, conducted a house search in the presence of witnesses and found the detenu in possession of 15 paper packets in polythene cover containing heroin, totally weighing 220 grams ostensibly for sales or preparation for sales and also one weighing balance with four weighing measures (20 grams - 1, 10 grams - 1, 5 grams - 1, 2 grams - 1). The said heroin and other articles were seized under house search list. The detenu was arrested for the same. His brother-in-law Ravikumar was also arrested at the same place and at the same time as he was found in possession of 9 paper packets of heroin weighing 155 grams and the same was also seized. Both of them were taken to the Narcotic Intelligence Bureau, C.I.D. Office, Madras-17, along with the seized heroin and a case in Narcotic Intelligence Bureau, C.I.D. Crime No. 140 of 1991 under S. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered and investigated. Later they were produced before the Judicial Magistrate, Tambaram, and they were remanded to judicial custody and lodged in Central Prison, Vellore. A report from the Chemical Examiner in respect of the contraband seized was obtained and final report was laid against the detenu before the Judicial Magistrate, Tambaram. It was taken on fine in P.R.C. No. 1 of 1992. On the basis of the above materials, after follow-up action and after drawing the subjective satisfaction, the impugned order of detention was passed.

(3.) Though the learned counsel for the petitioner challenged the impugned order on various grounds, he confined his argument on three grounds only. They are : (1) The detenu knows only Tamil to read and write as he studied a few classes in Srilanka only in Tamil medium. The detention order and the grounds in the Tamil version is not correct and does not reflect the correct satisfaction recorded in English version. It is submitted that the Tamil version in the satisfaction portion says that the detaining authority was satisfied that the detenu had indulged in the sale of narcotic drugs. But the order of detention says that the detention an order has been made to prevent the petitioner from possession of narcotic drugs. They are diametrically different and the same is not the satisfaction. Consequently the petitioner has not been given a true and faithful translation of the satisfaction. He has been denied of the opportunity under Article 22 (5) of the Constitution of India. This he has taken as a ground in para 6 of the affidavit. (2) The detaining authority has not apprised the petitioner of his right of making a representation to the Central Government with whom the right of revocation vests and such right of revocation is referable to the constitutional power considering the representation under Art. 22(5) of the Constitution of India. The non-apprisal of the petitioner a right of making a representation to the Central Government has rendered the continued detention unfair within the meaning of Art. 21 of the Constitution. This he has taken as a ground in para 10 of the affidavit. (3) The consideration of the representation by the detaining authority and its rejection is not valid and proper as he is not empowered to do so and that the continued detention is invalid. Though this ground has not been specifically averred in the affidavit, the learned Counsel for the petitioner raised this point at the time of arguments.