MURUGAN Vs. SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT AND DISTRICT MAGISTRATE AND DISTRICT COLLECTOR

JUDGEMENT

(1.) The petitioner himself is the detenu. He has questioned the detention order dated 3.3.2008 passed by the District Magistrate and District Collector, Madurai District/2nd respondent herein in exercise of the power conferred under Sub-section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act 1982 (Tamil Nadu Act 14 of 1982) read with the order issued by the Government in G.O.(D) No. 14, Prohibition and Excise (XVI) Department, dated 18.1.2008 under Sub-section 3(2) of Section 3 of the said Act.

(2.) The learned Counsel appearing for the petitioner has raised two grounds in challenging the detention order. One ground is to the effect that inasmuch as the detenu was arrested in the ground case on 24.2.2008 and was produced before the learned Judicial Magistrate, Thirumangalam, who remanded him to custody till 7.3.2008, the detaining authority has referred to the said remand as if it was made by the learned District Munsif-cum-Judicial Magistrate, Usilampatti. The above awareness of the detaining authority, as found in paragraph 5 of the grounds of detention, discloses a total non-application of mind on the remand of the detenu and therefore, the detention order is vitiated. The second ground is to the effect that in paragraph 3 of the grounds of detention, the detaining authority has referred that the detenu is habitually committing crimes of selling Ganja, but on the other hand, in all the four adverse cases, the detenu was charged only for possession of Ganja and even in the ground case, he was charged only for the offence under Section 8(c) read with 20(b)(ii)(B) of NDPS Act for possession of Ganja. Therefore, it is the contention of the learned Counsel for petitioner that the act of mere possession of Ganja cannot be considered as an act prejudicial to the public order or public health and hence, the detention order cannot be clamped on the petitioner. In support of the said submission, the learned Counsel appearing for the petitioner has relied upon the decision of this Court, Gurusamy v. The Secretary to Government of Tamil Nadu, 2006 1 CTC 654 Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600009 and Anr.

(3.) We have heard the learned Additional Public Prosecutor on the submissions made by the learned Counsel appearing for the petitioner.