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2014 Supreme(Mad) 4476
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. Tamilvanan and V.S. Ravi, JJ.
Ravichandran alias Chandran – Appellant
Vs.
The Secretary to Government, Home, Prohibition and Excise Department, The District Collector and District Magistrate and The Superintendent of Prison, Madurai Central Prison – Respondent
H.C.P. (MD) No. 987 of 2013
Decided On: 23.01.2014
Advocate Appeared
For Appellant/Petitioner/Plaintiff: Mr. R. Alagumani
For Respondents/Defendant: Mr. C. Ramesh, Additional Public Prosecutor
Non-application of mind by the detaining authority in issuing the detention order, which violated the fundamental rights of the detenu.
Headnote:
Habeas Corpus Petition - Challenge to Detention Order under Tamil Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 - Section 3(1) - N.D.P.S. Act, 1985, Sections 8(C) r/w 20, 25, 28, 29, 20(b)(ii)(c), 20(b)(ii)(B) - Violation of Fundamental Rights under Articles 19, 21, and 22(5) of the Constitution of India - Non-application of mind by detaining authority
Fact of the Case:
The detenu filed a Habeas Corpus Petition challenging the detention order passed under the Tamil Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982. The detenu was detained as a 'Drug Offender' under Section 3(1) of the Act based on adverse cases and a ground case pending against him.
Finding of the Court:
The court found that the detaining authority had not followed mandatory provisions to safeguard the fundamental right of personal liberty guaranteed under Articles 19, 21, and 22(5) of the Constitution of India. The court also noted that the detention order was vitiated due to the non-application of mind by the detaining authority.
Issues: Violation of fundamental rights, non-application of mind by detaining authority
Ratio Decidendi: The court held that the detention order was vitiated due to the non-application of mind by the detaining authority, which violated the fundamental rights of the detenu.
Final Decision: The Habeas Corpus Petition was allowed, and the impugned Detention Order was quashed, ordering the detenu to be set at liberty forthwith.
S. Tamilvanan, J.
1. This Habeas Corpus Petition is filed by the detenu, challenging the order of detention passed by the second respondent, by his proceedings in Cr.M.P. No. 10/2013 dated 20.08.2013, detaining him as a "Drug Offender" under Section 3(1) of the Tamil Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982, [for brevity "the Act"]. Now, he has been lodged at Central Prison, Madurai.
2. It is seen that there are three adverse cases and one ground case pending as against the detenu. The adverse cases are as under:
a) Trichy Customs C.I.U. Section O.R. No. 01/2010 registered under Sections 8(C) r/w 20, 25, 28, 29 of N.D.P.S. Act, 1985.
b) Crime No. 108 of 2012 in Sedapatti Police Station, registered under Sections 8(C) r/w 20(b)(ii)(c) of N.D.P.S. Act, 1985.
c) Crime No. 179 of 2012 in Sedapatti Police Station, registered under Sections 8(C) r/w 20(b)(ii)(c) of N.D.P.S. Act, 1985.
3. All the aforesaid adverse cases are pending for trial, however, there no previous conviction against the petitioner/detenu. The ground case relates to Crime No. 58 of 2013 registered under Section 8(C) r/w 20(b)(ii)(B) and 25 of N.D.P.S. Act, by the Madurai NIB CID Unit. As per the prosecution case, the detenu was found in possession of 6 Kgs. of Ganja.
4. Learned counsel for the petitioner drew the attention of this Court to the typed set of papers and submitted that the respondents have not followed the mandatory provisions that are available to safeguard the fundamental right of personal liberty guaranteed under Articles 19, 21 and22(5) of the Constitution of India.
5. Learned counsel for the petitioner relied on a decision of this Court in Rajeswari v. The Secretary to Government, reported in (2006) 1 MLJ (Crl.) 628, wherein a Division Bench of this Court has held in paragraph-6 of the order as under:
6. It is clear that the mother of the detenu highlighted that her son has not involved in any case and out of vengeance, false cases have been foisted against him by the police. We are not saying that there is truth in the said allegation, however, in view of assertion in the representation addressed to the Detaining authority, as said earlier, it is but proper on his part to forward it to the Government for consideration. In as much as the District Collector/District Magistrate failed to forward the same to the Government, we hold that the detenu is prejudiced by the act of the Detaining authority in not considering the representation of his mother. Though learned Government advocate contended that the said representation was handed over by the mother of the detenu, among several other persons, in view of the fact that the same has been received by the person on behalf of the District Collector and in view of the specific reference made therein relating to detention order, as said earlier, it is the duty of the District Collector to forward it to the Government for necessary action.
6. In support of his contention, the learned counsel for the petitioner also relied on a Division Bench judgment of this Court in Kasthuri v. District Collector and District Magistrate, reported in (2009) 2 MLJ (Crl.) 248, and it is seen that the ratio laid down is based on various decisions of the Hon'ble Supreme Court. In the decision reported in (2009) 2 MLJ (Crl.) 248, one of us is a party (S. Tamilvanan, J.).
7. The learned counsel for the petitioner argued that neither the adverse case, nor the ground case was registered under any provision of Drugs and Cosmetics Act 1910 or the Dangerous Drugs Act 1930 and he drew the attention of this Court to Page No. 4 of the impugned order, which reads as under:
His activities are against the provision of Drugs and Cosmetics Act 1910 and the Dangerous Drugs Act 1930.
8. As rightly pointed out by the learned counsel for the petitioner, neither the adverse case nor the ground case was registered und
