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2011 Supreme(Ori) 126
2011 (II) OLR (SC) — 147
MARKANDEY KATJU, SURINDER SINGH NIJJAR AND GYAN SUDHA MISRA, JJ.
CRIMINAL APPEAL NO(s). 755 OF 2011
Rekha ... Appellant
Versus
State of T.Nadu Tr. Sec. to Govt.
& Anr.... Respondents
WITH
CRIMINAL APPEAL NO. 756 of 2011
CRIMINAL APPEAL NO. 757 of 2011
CRIMINAL APPEAL NO. 759 of 2011
CRIMINAL APPEAL NO. 760 of 2011
CRIMINAL APPEAL NO. 762 of 2011
CRIMINAL APPEAL NO. 763 of 2011
CRIMINAL APPEAL NO. 764 of 2011
Decided on 5th April, 2011.
Headnote:1. TAMILNADU PREVENTION OF DANGEROUS ACTIVITIES OF BOOTLEGGARS, DRUG OFFENDERS, FOREST OFFENDERS, GOONDAS, IMMORAL TRAFFIC OFFENDERS, SAND OFFENDERS, AND SLUM GRABBERS AND VIDEO PIRATES ACT, 1982 - Allegation of selling expired drugs after tampering with the labels and printing fresh labels showing them as non-expired drugs - Detention order - Habeas corpus petition dismissed by High Court - Appeal - Criminal cases are already going on against the detenu under various provisions of the IPC as well as under the Drugs and Cosmetics Act, 1940 - If he is found guilty, he will be convicted and given appropriate sentence - Held, ordinary law of the land was sufficient to deal with this situation - Recourse to the preventive detention law was illegal.
2. DETENTION - No details have been given about the alleged similar cases in which bail was allegedly granted by the concerned Court - Neither the date of alleged bail orders has been mentioned therein, nor the bail application number nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused - Held, sufficient to vitiate the detention order.
3. DETENTION - A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
4. CONSTITUTION OF INDIA, 1950 - Art. 22 - Arts. 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Art. 21 of the Constitution - An exception is an exception and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Art. 21 of the Constitution - Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial - Art. 22 of the Constitution cannot be read in isolation but must be read as an exception to Art. 21 - An exception can apply only in rare and exceptional cases and it cannot override the main rule.
Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles, will become nugatory.
5. PREVENTIVE DETENTION - Whenever an order under a preventive detention law is challenged one of the questions, the Court must ask in deciding its legality is : was the ordinary law of the law sufficient to deal with the situation ? - If the answer is in the affirmative, the detention order will be illegal - In the present case, the charge against the detenu was of selling expired drugs after changing their labels - Held, relevant provisions in the I.P.C. and the Drugs and Cosmetics Act were sufficient to deal with the situation - Detention order in question was illegal.
JUDGMENT
CRIMINAL APPEAL NO. 755 OF 2011
MARKANDEY KATJU, J. — Heard learned counsel for the parties. This Appeal has come up in a reference made by a two Judge Bench of this Court by order dated 15.03.2011. The detenu in this Appeal Ramakrishnan (whose wife Rekha has filed this Appeal) has been detained by a detention order dated 08.04.2010 passed under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, and Slum Grabbers and Video Pirates Act, 1982, on the allegation that he was selling expired drugs after tampering with the labels and printing fresh labels showing them as non-expired drugs. The habeas corpus petition filed by the wife of the detenu before the Madras High Court challenging the said detention order has been dismissed by the impugned order dated 23.12.2010. Hence, this Appeal.
Several grounds have been raised before us, but, in our opinion, this Appeal is liable to succeed on one ground itself, and hence we are not going into the other grounds.
The detention order reads as under :-
“No. 199/2010 Dated 08.04.2010
DETENTION ORDER
Whereas I, T. Rajendran, IPS., Commissioner of Police, Chennai Police, is satisfied that the person known as Tr. Ramakrishnan, male aged 35, S/O Devaraj, No. 82-B, South Mada Veethi, Villivakkam, Chennai-49 is a Drug Offender as contemplated under Section 2(e) of the Tamil Nadu Act 14 of 1982 and that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order.
Now therefore in exercise of the powers conferred on me by sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, and Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) read with orders issued by the Government in G.O. (D) No. 6, Home, Prohibition and Excise (XVI) Department dated 18th January, 2010 under subsection (2) of Section 3 of the said Act, I hereby direct that the said Drug Offender Tr. Ramakrishnan, S/o Devaraj, be detained and kept in custody at the Central Prison, Puzhal, Chennai.
Given under my hand and seal of this office the 8th day of April, 2010.”
The relevant part of the grounds on which the said detention order has been made is as follows :-
“Thiru. Elango, M. Pharm, male aged 43, S/O Ramasamy is working as a Drug Inspector, Drug Control Department, Perambur Range, Zone-II, D.M.S. Complex, Teynampet, Chennai-18. On 15.03.2010, Thiru. Elango appeared before the Inspector of Police, Crimes P-6 Kodungaiyur Police Station and lodged a complaint against Thiruvalargal, Prabhakar @ Ravi, 2) Venkatesan, 3) Sanjay Kumar, 4) Sekar, 5) Baskar, 6) Pradeep Kumar Chordia and 7) Meenakshi Sundaram.
In his complaint, he has stated that expired drugs collected from the medical shops of Chennai city and Suburban used to be dumped at dump yard of Corporation ground at Ezhil Nagar, Kodungaiyur, Chennai. On 15.3.2010, Thiru, Elango received a secret information that expired drugs dumped at the dump yard at Corporation ground, Ezhil Nagar, Kodungaiyur, Chennai, were taken by Thiru. Prabhakar @ Ravi residing at the first floor of No. A-6/541, 151st Street, Muthamizh Nagar, Kodungaiyur, Chennai and by keeping the same with his associates tampered the same tampering the original labels and printing fresh labels to make it appear as though they are not expired drugs and redistribute the same for sale to the general public.”
In para 4 of the grounds of detention, it is stated :-
“4. I am aware that Thiru. Ramakrishnan, is in remand in P.6, Kodungaiyur Police Station Crime No. 132/2010 and he has not moved any bail application so far. The sponsoring authority has stated that the relatives of Thiru. Ramakrishnan are taking action to take him on bail in the above case by filing bail applications before the Higher court
