1994 Supreme(Mad) 329

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ARUNACHALAM & THE HONOURABLE MR. JUSTICE THANGAMANI
VARTHAMALAI
Versus
GOVT. OF TAMIL NADU
H.C.P.2368 of 1993
Decided On : 25-03-1994

Headnote:(i) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 Sections 3(1) & 3(2) - Detention u/s. 3(1) - Mandate u/s. 3(2) of forwarding to Central Government a report in respect of orders of detention - If report stands made without avoidable or unreasonable delay, provision of Section 3(2) shall have to be held to have been complied with (S.K. Salim's case 1975 S.C.C. (Cri.) 290 : Relied on).

       Held: Themandate under Section 3 (2) of the Act will permit, a test, to find out whether the act was done, with all reasonable despatch and without avoidable delay and further any prejudice had been caused to the petitioners, by the late making of the report. In our view, if the report stands made without avoidable or unreasonable delay, provisions of the section shall have to be held to have been complied with. (Para 8)

       (ii) Constitution of India - Article 22 (5) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Section 3(1) - Detention under - Supply of copy of documents in Hindi and English - Infinitesimal and minor errors which do not affect core of communication of orders and grounds of detention, not to be taken undue advantage of by detenu when detenu had been communicated effectively, purport of grounds, without any ambiguity. (Paras 11 to 15)

       (iii) Preventive Detention - Detaining Authority stated in grounds of detention that there was likelihood of detenu coming out on bail - Whether subjective satisfaction arrived at by detaining authority is vitiated? - (No).

       Held: This statement, according to petitioners' counsel, has been made without taking note of the stringent provisions under Section 37 of the NDPS Act, which makes obtaining of bail, not an easy formality. We have carefully assessed this contention. It is not as though bail is not ordered when offences are committed under NDPS Act, though a procedure of issue of notice to the Public Prosecutor and hearing him on certain aspects, form an integral part of Section 37. All that the detaining authority is expected to be aware is about the fact of remand of the detenu concerned and the imminent possibility of the detenu coming out on bail by preferring bail applications in Court, which may then lead to commission of future prejudicial activities. (Para 16)

       The compelling necessity, in the view of the detaining authority, as is evident from the grounds, is that even in such cases, bails are granted after some time. We are unable to fault the subjective satisfaction arrived at by the detaining authority. (Para 16)

       (iv) Preventive Detention - Order based on a solitary instance - Detenus actively involved in drug trafficking - Whether order based on a solitary instance is sustainable? - (Yes). (Para 17)

       (v) Habeas Corpus Petition - Order of preventive detention - Challenged on ground that samples seized were belatedly produced before Court - Whether this question falls within arena of habeas corpus? - (No). (Para 18)

       (vi) Preventive Detention - Six samples of drugs seized - One each taken from each of detenu were forwarded to laboratory - All three of them found to contain opium - Failure to put any specific identification marks on samples not fatal. (Para 19)

       (vii) Preventive Detention - Delay in disposal of representations forwarded by detenus to Central Government - Delay in Pistal transit because of postal strike - Central Government could not be faulted on peculiar facts of case.

       Held: Delay is a question of fact and as has been observed by the Supreme Court recently, some leeway may have to be given for administrative delays any in that process, we canndt ignore the possible delays in postal transit. The duty of the Court is to scrutinise, if representations had been disposed of without exhibition of lethargy, slackness or indifference. (Para 21)

       (viii) Preventive Detention - Supply of documents - Certain English words find a place in grounds of detention, which have not been translated into Hindi and supplied to detenu No prejudice caused to detenu because of those portions being in English - Words are easily understandable - Order legally sustainable. (Para 22)

       (ix) Preventive Detention - Order of detention and grounds of detention show that they have been served on a person where thumb impression had been obtained - No endorsement made as to person whose thumb impression stood obtained at 12.30 on 24.11.1993 - Detenu capable of affixing his signature - Service having been effected by Jailor - Service of documents book effected by Superintendent, Central Prison - Paperbook stood supplied to that person whose thumb impression is found only at 4.30 p.m. on 25.11.1993 - Manner of service effected being doubtful - Order of detention not legally sustainable.

       Held: The order of detention and the grounds of detention show, that they had been served, on a person, whose thumb impression had been obtained at 12.30 noon on 24.11.1993. These two documents do not bear any endorsement, as to the person whose thumb, impression stood obtained, in those documents. A specific ground was urged by Mr. P.V. Bakthavatsalam, that when the search was conducted, search list was served on this detenu, under his signature. This detenu is capable of affixing his signature and if that be so, it was rather odd, that, his thumb impressions, had been obtained in the order of detention and the grounds of detention. It may be, that the detenu had possibly thought of affixing his thumb impression to provide one more ground for challenging his detention, but that cannot weigh with us in this case, without any material and more so when this detenu through his representation had asked the State Government as to the author of those thumb impressions found not only in the order and grounds of detention but also in the paperbook supplied to him. This part of the query made by the detenu, did not evoke any reply from the authorities concerned, though it is a very vital matter. As a matter of fact, on a scrutiny of the detention file, we find that as early as 25.2.1994, the Law Department has made a note (Para 25)

       Not only the authorities were put On notice through the representation, but as well through petitioner's affidavit filed in this Habeas Corpus Petition, about this serious infirmity, of very vital nature. The authorities concerned did not deem it fit either to offer an explanation or to put their stand in the counter. Unfortunately, for the State, at the last minute, it was thought fit to hurriedly get ready counter-affidavits and put them before this Court on the next hearing day, when orders were expeced to be pronounced. As far as the counter-affidavit of the Secretary to Government, Prohibition and Excise Department, is concerned, it is the usual affidavit of denial and hence it does not advance the case of the Government. All that is surprising, is that an intended salvaging supporting affidavit has been filed by Selvaraj, Additional Superintendent, Central Prison, Madras, who was at the relevant time Jailor at Central Prison, Salem. (Para 25)

       In this affidavit, Selvaraj has not stated, as to why an endorsement was not made, abutting the thumb impressions that they belonged to detenu Kandan. This is the elementary precaution that one can expect, when service is made of a document. An explanation ought to have been furnished, which is conspicuous by its absence. Be it as it may. The more shocking feature is, that the affidavit of Selvaraj, has been demonstrated to be false, by Mr. P. V. Bakthavatsalam, by reference to the documents available before us. We find, that the detention order and the grounds, stood served on the person whose thumb impression is found on these documents, at Central Prison, Salem, at 12.30 noon on 24.11.1993, service having been effected by Jailor who is none other than Selvaraj, who has sworn to an affidavit before us. While so, we find that the documents book was served, to the person whose thumb impression is found therein, only at 4.30 p.m. on 25.11.1993 and such service was effected by the Superintendent, Central Prison, Salem, a totally different individual other than Selvaraj. If the documents of service show, that the paper book stood supplied, to that person whose thumb impression is found, only at 4.30 p.m. on 25.11.1993, it is rather amazing, as to how a sworn statement could have been made by Selvaraj in his Affidavit before us that he had served this documents book also relied upon by the detaining authority, even on 24.11.1993. Thus service effected on the person, whomsoever it might be, inside Central Prison, Salem, on 24.11.1993 and 25.11.1993, is open to serious doubt. As a matter of fact, we are impelled to doubt, the manner of service effected, in prisons throughout the State. (Para 25)

       We doubt the service of documents on this detenu, though it is quite probable, that he might have been the recipient, but on imagined surmises, we cannot base our conclusions. Either Selvaraj had uttered falsehood or the Jail Superintendent has made a false record of service, or it may be that both of them had committed grave irregularities inside the prison. If the affidavit of Selvaraj is true, service of paperbook, on 25.11.1993, by the Additional Jail Superintendent, on the 'thumb impressionist' should be false. On the contrary if service on 25.11.1993 is true, the affidavit of Selvaraj must be false. Looked at from either angle, 'service episode' not only shocks our conscience, but also appears to be dubious, more so when the recipient has not been identified in the service record itself. We are unable to attach any sanctity to this alleged communication to detenu Kandan. This is a matter which requires an immediate and detailed enquiry, not only to prevent instances of this nature in future, but also to preserve the sanctity of service sought to be effected in prisons, more so in cases, where detenus are kept incarcerated, without trial. Learned Additional Public Prosecutor shall inform the State Government about this serious infirmity, so that action shall stand initiated without any delay on the officers concerned. Since, on a prior occasion, when an enquiry was directed by us, documents were stated to be missing, or not available, we have appended to the Court record, the paperbook produced before us by Mr. P.V. Bakthavatsalam, so that, in the event of an enquiry, it could be made readily available to the investigating agency. Such agency can always take with the permission of this Court, the order of detention and grounds of detention, which were also served on the person whose thumb impressions are found therein, by another officer who was not responsible for the service of the paperbook. Due to this serious infirmity, we are constrained to held, that communication, of the order of detention, grounds of detention and the paperbook, to this particular detenu, is open to serious doubt. (Para 25)

       Result: Ordered accordingly. H.C.P. Nos. 2363 and 2367 of 1993 dismissed. HCP No. 2368 of 1993 allowed.