Ravi Alias Ganeshalingam v. State Of Tamil Nadu And Another
1992-09-23
K.M.NATARAJAN, N.ARUMUGHAM
body1992
DigiLaw.ai
Judgment :- K.M. NATARAJAN, J. 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.
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 arguments 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.
3. Though the learned counsel for the petitioner challenged the impugned order on various grounds, he confined his arguments 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. 4. As regards the first point, our attention was drawn to the order of detention wherein it is stated that the impugned order of detention was passed with a view to preventing the detenu from engaging in possession of narcotic drugs (heroin).
4. As regards the first point, our attention was drawn to the order of detention wherein it is stated that the impugned order of detention was passed with a view to preventing the detenu from engaging in possession of narcotic drugs (heroin). In the grounds of detention also, at page 4, it is stated : "I am therefore satisfied that it is necessary to detain you under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988) with a view to preventing you from engaging in the possession of heroin, a narcotic drug." This satisfaction arrived at by the detaining authority is correctly reflected in the detention order. The learned counsel for the petitioner wants this Court to refer to the earlier part of the grounds of detention with regard to the seizure of second item wherein it is stated that the detaining authority was satisfied that the detenu was all along engaged in the illicit traffic of heroin a narcotic drugs and if he is not prevented, he will continue to engage in illicit drug trafficking. That is in respect of the second seizure. We have gone through the grounds of detention and we find that after considering the various activities of the detenu and also facts and materials placed before him and relied upon, the detaining authority ultimately arrived at the subjective satisfaction that it is necessary to detain him under the Act with a view to preventing him from engaging in the possession of heroin, a narcotic drugs. The Tamil translation is also to the same effect. We do not find any incorrect translation of the same in the Tamil version of the grounds of detention or detention order as contended by the learned Counsel for the petitioner. In the circumstances, we do not find any merit in the contention that the detenu has not been given a true and faithful translation of the satisfaction and he was left to wonder what precise case he has to meet. Hence, we reject this contention as devoid of any merit. 5.
In the circumstances, we do not find any merit in the contention that the detenu has not been given a true and faithful translation of the satisfaction and he was left to wonder what precise case he has to meet. Hence, we reject this contention as devoid of any merit. 5. As regards the second contention, namely, the detenu has not been apprised of his right of making representation to the Central Government with whom the right of revocation vests and the non-appraisal of the petitioner's right of making representation under the continued detention unfair within the meaning of Art. 21 of the Constitution, we find that in the grounds of detention it is stated as follows : "You are informed that you have a right to make representation in writing against the order of detention. If you wish to make a representation against your detention to the Detaining Authority and/or the State Government of Tamil Nadu, you may do so and address it to the undersigned or to the Chief Secretary to Government of Tamil Nadu as the case may be and forward the same through the Superintendent of Prison where you are detained. Any representation that is made by you will be duly considered by the Government and will also be placed before the State Advisory Board for consideration of your case under S. 9 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988)." It is further stated that the detenu is also entitled to make a written representation before the Advisory Board against his detention and if he desires he may send the same to the Chairman, Advisory Board, without prejudice to his right to make oral representation before the Advisory Board at the time of his personal hearing by the said Board. In this case, even according to the detenu, he has sent a representation to the detaining authority through the jail authorities, namely, Superintendent, Central Prison, Vellore. It is also now submitted that the said representation has been considered and disposed of. The learned counsel for the petitioner, Mr.
In this case, even according to the detenu, he has sent a representation to the detaining authority through the jail authorities, namely, Superintendent, Central Prison, Vellore. It is also now submitted that the said representation has been considered and disposed of. The learned counsel for the petitioner, Mr. B. Kumar submits that in view of S. 12 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the Central Government has got a power of revocation of detention order, besides the State Government, and the failure of the detaining authority to inform the petitioner of his right to make a representation to the Central Government would vitiate the continued detention. In this connection, the learned counsel relied on the decision reported in Jagprit Singh v. Union of India, (1990) 3 Crimes 130 (SC). That was a case where the declaration under S. 9 of the Act had been made on 4-10-1988. A copy of this declaration had been endorsed to the detenu. However, this declaration did not make the detenu aware of his rights of representation against the declaration. It was contended that either in the declaration order or in some communication contemporaneously issued the detenu must have been informed that he had a right to make the representation against the declaration to the declaring authority, the Central Government and the Advisory Board constituted under the Act, and this not having been done, the continued detention beyond the original period of one year from the date of detention is unjustified. It was held in para 5 as follows :- "But it is undeniable that in the facts and circumstances of this case, the detenu has not been made aware, either in the order of declaration or within a reasonable time thereafter, that he had a right to make a representation against the declaration to the appropriate authorities. From the papers placed on record, it has not until the detenu wrote to the declaring authority on 10-11-1988 seeking clarification as to whether he had a right of representation against the declaration and, if so, to which authority that a clarification on this matter was furnished to him on 17-11-1988. In other words, there has been a delay of about a month and 13 days before the detenu was made aware of his rights under the Constitution to make an effective representation against the declaration.
In other words, there has been a delay of about a month and 13 days before the detenu was made aware of his rights under the Constitution to make an effective representation against the declaration. This delay, in our opinion, is quite unreasonable and inconsistent with the provisions of Art. 22(5) of the Constitution of India." In the above quoted case, the very right of the detenu to make representation against the declaration to the appropriate authority has not been mentioned, and subsequently after the detenu asked for clarification, it was furnished and thus a delay has occurred. In the circumstances, their Lordships held that the continued detention beyond the original period of one year was not justified. But in the instant case, the detenu has been specifically informed about his right to make representation against the order of detention to the detaining authority, State Government and the Advisory Board and he has also availed of that opportunity. Hence, that decision is not helpful to the case of the petitioner. The learned Counsel relied on the decision of the Supreme Court in Wasi Uddin Ahmed v. District Magistrate, Aligarh, AIR 1981 SC 2166 : (1981 Cri LJ 1825), wherein it was held : "Where the detenu was an enlightened person and had been in active politics and was, therefore, fully cognisant of his right to make a representation under Art. 22(5) and under S. 8 of the National Security Act and he, in fact, appeared before the Advisory Board and file a representation against the order of detention and was also personally heard by the Advisory Board, the failure to comply with the requirement of informing the detenu with his right to make a representation would not have the effect of vitiating the order of detention or render the continued detention of the detenu illegal." The learned counsel pointed out that in that decision it was emphasised that a duty is cast on the detaining authority to inform the detenu of his right to make representation to Advisory Board.
Even in the above decision, it was pointed out where the detenu was an enlightened person and had been in active politics and was fully cognisant of his right to make a representation under Art. 22(5) and under S. 8 of the National Security Act and further he in fact appeared before the Advisory Board and filed a representation against the order of representation and was also personally heard by the Advisory Board, the failure to comply with the requirement of informing the detenu with his right to make a representation would not have the effect of vitiating the order of detention or render the continued detention of the detenu illegal. In the instant case in view of the fact that the detenu was apprised of his right to make a representation to the authorities and he also availed the same, it cannot be said that the detention order is invalid. The detenu cannot plead ignorance of his right to make representation in the instant case. As such, the said decision is not helpful to the case of the detenu. In the State of Maharashtra v. Sushila Mafatlal Shah, AIR 1988 SC 2090 : (1989 Cri LJ 99), three questions arose for consideration and the first question was : Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of S. 3(1) by the respective Government, make him the Detaining Authority and not State Government or the Central Government as the case may be, and obligate him to inform the detenu that he has a three-fold opportunity to make his representations i.e. the first to himself and the other two to the State Government and the Central Government. Their Lordships of the Supreme Court after considering the earlier decisions ultimately answered the said question and the two other questions in the negative. In view of the above decision, this contention is without any substance. 6. The third contention that the detaining authority himself has disposed of the representation without forwarding the same to the State Government is also not tenable in view of the decision rendered by the apex Court in Amir Shad Khan v. L. Hmingliana, 1991 Cri LJ 2713 : ( AIR 1991 SC 1983 ) and Ibrahim Bachu Bafan v. State of Gujarat, AIR 1985 SC 697 : 1985 Cri LJ 533.
It may also be noted that in a decision of this Court in W.P. No. 8073 of 1991 dated 10-12-1991 (M. Arumugham v. The Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi) this Court has laid : "If as laid down in Amir Shad Khan's case, 1991 Cri LJ 2713 : ( AIR 1991 SC 1983 ) and Ibrahim Bachu Bafan's case, AIR 1985 SC 697 : (1985 Cri LJ 533), the Officer, who had passed the order of detention, has power to rescind or revoke it and which power has nexus to Art. 22(5) of the Constitution of India, non-consideration by him of the plea for revocation made by the detenu would be sufficient to entitle the detenu to the relief sought for in the writ petition. Keeping in view the law laid down by the Supreme Court, on binding nature of precedents as well as on the peruliar facts of this case, we have no hesitation in holding that the continued detention of the petitioner would violate the mandate of Article 22(5) of the Constitution." In view of the ratio laid down by the apex Court which was followed by this Court in the above quoted writ petition with which we are also in entire agreement, the contention of the learned counsel for the petitioner that the consideration of the representation by the detaining authority himself would vitiate the order is without any substance as it is not tenable. Further, we also find that the impugned order has been passed in accordance with the procedure and the statute and that it does not suffer from any infirmity or illegality whatsoever for any interference. In view of our findings on the above points against the detenu this petition is devoid of any merit and is liable to be dismissed. 7. In the result, the impugned order of detention passed is confirmed and this writ petition fails and stands dismissed. Petition dismissed.