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1994 DIGILAW 129 (MAD)

Ayisha and another v. The Secretary to the Government of Tamil Nadu, Prohibition and Excise Department, Madras and another

1994-01-27

ARUNACHALAM

body1994
Judgment :- Arunachalam, J.: Both these habeas corpus petitions are disposed of together by a common order since the detenus concerned are stated to be involved in the same ground crime and the arguments advanced are identical. .2. Ayisa, petitioner in H.C.P.No. 1853 of 1993 is the wife of detenu Sufiyan, who has been detained in pursuance of an order of detention dated 9. 1993 passed by the first respondent in exercise of powers conferred by Sec. 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 indulging in illicit traffic in narcotic drugs (Heroin). 3. Parvathi, petitioner in H.C.P.No. 1866of 1993 is the cousin of detenu Ramakrishnan who has been similarly detained by an order dated 9. 1993 passed by the first respondent. .4. It will be necessary to narrate in brief, the facts which led to the passing of the impugned orders of detention. T.Kalidasan, Sub Inspector of Police, Narcotic Intelligence Bureau, Madras, on receipt of reliable information on 27. 1993 that these two detenus were available in a particular residential premises with huge quantity of heroin intended to be transported to Tuticorin for export of the same to Sri Lanka, obtained a search order from the Superintendent of Police, N.I.B., C.B., C.I.D.,on the same day and proceeded to conduct search at House No. 3, Pillaiyar Koil Street, North T.Nagar, Madras-17, in the presence of the Superintendent of Police, B.I.B., C.I.D., and other witnesses, at or about 6.30 p.m. Sub-Inspector of Police found detenu Sufiyan and detenu Ramakrishnan present in the said premises. After revealing his identity to the detenus and explaining the contents of the search order in Tamil, he obtained the signatures of both the detenu in the search order. Between 6.30 p.m. and 7.30 p.m. house search was conducted. Both the detenus admitted the truth of the information, available against them. Detenu Sufiyan voluntarily produced a black and ash colour American Tourister suitcase with a number lock. Heroin weighing 800 grams, was found concealed. Two samples of heroin, weighings grams each, were taken from the bulk for the purpose of analysis. Similarly, detenu Ramakrishnan produced a light green Aristocrat suit case in which a polythene cover containing 600 grams of heroin was found concealed with a dhoti and banian. Heroin weighing 800 grams, was found concealed. Two samples of heroin, weighings grams each, were taken from the bulk for the purpose of analysis. Similarly, detenu Ramakrishnan produced a light green Aristocrat suit case in which a polythene cover containing 600 grams of heroin was found concealed with a dhoti and banian. Similarly samples, two in number were taken from the bulk, for the purpose of analysis. A copy of the search list was served on both the detenus, under acknowledgment. Contraband was seized and at 7.30 p.m. both the detenus were arrested after informing them the grounds of their arrest. Crime No. 64 of 1993 under Sec.8(c) read with Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered. Both the detenus were individually examined and their statements recorded. Investigation revealed that both the detenus had actively indulged themselves in smuggling heroin to Sri Lanka through Tuti-corin. On 27. 1993, both the detenus were produced before the 16th Metropolitan Magistrate, Saidapet, Madras and judicial remand obtained. Report of the Chemical Analyst revealed that the seized contraband was heroin. Bail pleas of the detenus were negatived by the Principal Sessions Judge, Madras. After follow up action, impugned orders of detention were passed. 5. Mr.G.R. Edmund, learned counsel appearing on behalf of the petitioners, urged before three contentions: (1) Representations dated 29. 1993 forwarded by the respective detenus to the State and Central Governments were either disposed of improperly without calling for comments from the arresting officer, or after long and unexplained delay. Either way, the detenus were bound to succeed. (2) Though the grounds of detention disclose, that the Superintendent of Police, N.I.B. C.I.D., was bodily present at the time of seizure have not stated that the Superintendent of Police had signed in the search list, while the Sub Inspector of Police who conducted the search has stated that the Superintendent of Police also affixed his signature in the said document. Search list itself does not contain the signature of the Superintendent of Police. These serious infirmities have been overlooked by the detaining authority and that would suffice to proclaim non-application of mind. (3) The grounds of detention inform the detenus, that the Sub Inspector of Police, had explained the contents of the search order to the detenus in Tamil, by translating it, whereafter, both of them signed in acknowledgment, of having understood the said order. (3) The grounds of detention inform the detenus, that the Sub Inspector of Police, had explained the contents of the search order to the detenus in Tamil, by translating it, whereafter, both of them signed in acknowledgment, of having understood the said order. However, the signatures of the detenus are not to be found in the search order. In other words, the contention was, that the original signatures of the detenus were not available before the detaining authority and if that be so, it must be deemed, that the impugned orders had been passed mechanically. Similarly, the original signature of Sub Inspector of Police, is not to be seen in the Tamil copy of remand report supplied to the detenu and equally the signature of the Magistrate who remanded the detenus to judicial custody, does not form part of the remand order. Without such signatures in original detaining authority could not have effectively applied his mind, for passing the impugned orders. 6. On these grounds, we have heard Mr.I. Subramanian, learned Additional Public Prosecutor representing the first respondent and Mr.K. Asokan, learned Additional Central Government Standing Counsel appearing on behalf of the second respondent. Learned Additional Public Prosecutor submitted that the representations dated 9. 1993 forwarded by the detenus from Central Prison, Madras were received on 29. 1993 by the State Government. 25th and 26th of September, 1993 were holidays being Saturdays and Sunday. Even on 7. 9.1993, remarks were called for from the Superintendent of Police, Narcotic Intelligence Bureau. Such remarks were received on 29. 1993. Representation file was submitted to Under Secretary on 29. 1993. It was approved by him on the same day. On the next day, Joint Secretary approved the same leading to the Secretary considering and rejecting the representation on the very same day. Even on 30.9.1993, letters were forwarded to the detenu informing them of rejection of their respective representations, which were served on them on 10. 1993. Asa matter of fact, parawar remarks were received by the State Government on every averment made by the detenue and hence it would be wrong to submit that the representations of the detenus had not been properly disposed of, by the State Government, and such disposal was without calling for remarks regarding arrest of the detenus. 1993. Asa matter of fact, parawar remarks were received by the State Government on every averment made by the detenue and hence it would be wrong to submit that the representations of the detenus had not been properly disposed of, by the State Government, and such disposal was without calling for remarks regarding arrest of the detenus. On this ground, which is the only ground, on which the Central Government had to reply, Mr.K. Asokan, learned Additional Central Government Standing Counsel submitted that representations dated 29. 1993 were received in the Ministry on 10. 1993. In between 29. 1993, 29. 1993, 10. 1993 and 10. 1993 were holidays. Remarks were called for from the State Government even on 10. 1993. This letter was received by the State Government 110. 1993. On 110. 1993 State Government called for remarks from the sponsoring authority. Remarks of the sponsoring authority were received by the State Government on 20.10.1993. In between 110. 1993 and 110. 1993 were holidays. On 210. 1993, State Government forwarded its remarks to the Government of India. On 210. 1993, Government of India received these remarks. On 210. 1993 and 210. 1993 were holidays. On 210. 1993 papers were submitted to the officers concerned and representation of the detenu in H.C.P.No. 1853 of 1993 was rejected on the same day, while representation of the detenu in H.C.P.No. 1866 of 1993 was rejected on 210. 1993. On the basis of dates detailed above, Mr. Asokan contended, that it was possible to visualise, that approximately postal transit between Delhi and Madras, takes six days. He contended that there was continuous and expeditious consideration of the representations forwarded by both the detenus and hence on this ground, detenus cannot succeed. 7. On the second ground, Mr.I. Subramanian submitted, that in the search list furnished to the detenus, it has only been indicated, that the Superintendent of Police as well as the detenus themselves, had signed in the search list. The officer who conducted the search and obtained the signatures of all concerned in the house search list will have to submit the original to the jurisdiction Magistrate, and therefore copies of search list, only indicate, that the detenus and the Superintendent of Police had affixed their signatures in the relevant search list. The officer who conducted the search and obtained the signatures of all concerned in the house search list will have to submit the original to the jurisdiction Magistrate, and therefore copies of search list, only indicate, that the detenus and the Superintendent of Police had affixed their signatures in the relevant search list. However, the original copy of the authorisation of the Superintendent of Police to search the premises had been placed before the detaining authority and the same has been furnished to the detenus as well, at page 13 of the relevant paper books. The original house-search list is available on the file of the trial court. A copy of the original duly attested by the sponsoring authority was produced before the detaining authority, a xerox copy of which was served to the respective detenus. His contention was that on this score, non-application of mind can neither be inferred nor upheld. He submitted that merely because the witnesses examined during investigation had been silent, about the Superintendent of Police having affixed his signature in the search list, it cannot be held, that there was contradition in that the Sub-Inspector of Police has spoken about the Superintendent of Police having affixed his signature in the search list. On the totality of material, the detaining authority had arrived at his subjective satisfaction and it cannot be said that such satisfaction was based either on no material, or arrived at mechanically. 8. On the third ground, he pointed out that in the original remand requisition, the signature of the Inspector of Police is found, while naturally in the Tamil translation, it has been mentioned that the said officer has signed. There can be nothing surprising in this procedure. Similarly, in the copy supplied to the detenus, regarding remand, the original signature of the Magistrate cannot be legitimately expected, for authenticated copies of the originals, by the sponsoring authority, had gone in the process of arriving at subjective satisfaction. If the detenus had any grievance, they could have asked for the originals of those documents from the detaining authority, who could have then obtained xerox copies of the same from the concerned court and furnished them to the detenus. Such a request was not made. It is not as though an adverse verdict was sought to be given against the detenus, in a full-fledged trial, without original material. 9. Such a request was not made. It is not as though an adverse verdict was sought to be given against the detenus, in a full-fledged trial, without original material. 9. We have carefully assessed and evaluated the divergent contentions placed for our scrutiny. On the first contention, it was not urged, that there was any delay in the disposal of representation, by the State Government. All that was submitted was that comments from the arresting officer had not been called for. In their representations dated 29. 1993, both the detenus have stated in the penultimate paragraph, that at 8.00 p.m. on 27. 1993 John Rose, Inspector of Police, Narcotic Intelligence Bureau, arrested Manjit Singh alias P.D. Singh of North India on Kodambakkam High Road opposite to Pratap Plaza at which time he was found in possession of a suit-case containing 4 1/ 2 Kgs. of heroin powder, which was seized in their presence. Both of them were taken to the office of Narcotic Intelligence Bureau to obtain their signatures. Two or three others were also taken. While so, they were remanded after obtaining bribe from Manjit Singh. Bail plea of Manjit Singh was not opposed. To cover up their faults, Narcotic Intelligence Bureau has sponsored their preventive detention. On this specific allegation, State Government had called for a report from the Superintendent of Police, N.I.B. and he in turn had obtained information from the Inspector of Police, N.I.B., C.I.D. In the penultimate paragraph of the remarks, Inspector of Police has stated that the plea of the detenus was far from truth. Extraneous material not connected with the impugned crime without any basis, has been alleged. Such allegations do not have any foundation. With an ulterior motive, to escape from preventive detention, detenus have attepted to trot out, imaginary material. Preventive orders have been based on legal and factual material duty placed before the detaining authority. If representations had been disposed of on the basis of parawar remarks obtained by the State Government from the sponsoring authority, it cannot be contended that the representations of the detenus were mechanically disposed of by the State Government without properly calling for remarks on the averments found in the representations. If representations had been disposed of on the basis of parawar remarks obtained by the State Government from the sponsoring authority, it cannot be contended that the representations of the detenus were mechanically disposed of by the State Government without properly calling for remarks on the averments found in the representations. It will not be necessary that the State Government should call for remarks from each and everyone in the Department named by the detenus for the remarks forwarded by a superior officer after obtaining facts from all concerned would suffice, on the specific allegations made by the detenus. If the detaining authority had not been satisfied with the remarks, he would have certainly called for better particulars which contingency does not arise, in the instant cases. As far as the court is concerned, all that it has to look for, is whether the allegations in the representation have been taken note of and considered by the detaining authority. Once it is satisfied that such an exercise had been adopted that will be the end. We are unable to fault the State Government on the nature of disposal it had given to the representation of the detenus. Representations had not been disposed of improperly as contended by petitioner’s counsel. 10. As far as the Central Government is concerned, it was sterenuously contended, that the rejection orders show, that the representations had been despatched to the wrong address, indicating thereby, that some delay had occurred dur to that infirmity. Mr.G.R. Edmund, petitioners’ counsel pointed out, that representations were forwarded to the authority mentioned in the grounds of detention and if that be so, it will be unfair for authorities to point out, a non-existent reason, to cover up their lapses. Equally, if the address to which the detenu had forwarded his representation to the Central Government, had been wrongly furnished by the State Government, it only denotes non-application of mind by the detaining authority. Both Mr.I.Subramanian and Mr.I. Asokan submitted, that recently a PITNDPS Cell has been constituted in the Central Government, to deal with representations of the detenus detained, under the PITNDPS Act and that at the time when the grounds were served on the detenu, the State Government had furnished the correct address, which was available with it, and hence undue advantage cannot be sought to be taken by the petitioners on this score. It will be our duty to considerif the Central Government had exhibited supine indifference and reckless negligence in disposal of representations forwarded by detenus. We must also find out, if the Central Government had considered the representations of the detenus continuously and expeditiously as ordained by law, as sought to be claimed by the second respondent. We have already given the dates. It will be necessary, to refer at this stage, to the decision of the Supreme Court in Kamala Bai v. Commissioner of Police, 1993 S.C.C. (Crl.) 913 has stated, that short delays should not be given undue importance having regard to administrative actions. Only when the delay is inordinate, it would warrant interference. It would be better to quote the observations of the Supreme Court: “The other ground urged is that there was delay in the Central Government considering the representation. In the counter-affidavit filed in the court below, it is stated that the representation was dated May 11, 1992 and it was received in the department on May 14, 1992and later it was sent to the Home Minister and reply was given to the detenu on May 26, 1992. So far as the State Government is concerned there is no delay. Now coming to the consideration by the Central Government it is stated in the affidavit that the Government of India sent a wirelss message on May 19, 1992 asking certain information and the information was sent on May 21, 1992 and again a wireless message was given on July 13, 1992 and on July 15, 1992 the matter was concluded by the Government of India. The submission that from June 18, 1992 (June 17 being the date of confirmation of detention order by State Government) to July 13, 1992 no explanation has been given regarding the delay. The delay by itself is not a ground which proves to be fatal, if there is an explanation. However, the short delay cannot be given undue importance having regard to the administrative actions. We do not think that the delay in this case is so inordinate as to warrant interference”. Mr.K. Asokan was right, when he submitted, that postal transmission between Delhi and Madras consumes approximately six days. Postal transmit initially from Madras to Delhi has taken a fairly long amount of time. Representation dated 29. 1993 forwarded from Madras was received at Delhi only on 10. 1993. Mr.K. Asokan was right, when he submitted, that postal transmission between Delhi and Madras consumes approximately six days. Postal transmit initially from Madras to Delhi has taken a fairly long amount of time. Representation dated 29. 1993 forwarded from Madras was received at Delhi only on 10. 1993. If we exclude Sundays and Gandhi Jayanthi day which had intervened in between, it cannot be stated that the delay in transmission was so huge. Sometimes postal transit takes more time. A rigid time formula cannot be applied for postal transmission probably, it would be better that the State and Central Governments resort to quicker modes of transmission, so that complains of delay in transmission, need not have to be allowed, to surface, every other time, we are able to notice, that transmission has, taken approximately six days between Madras and Delhi. On the very date of receipt of representation, Central Government had called for remarks from the State Government. Similarly, State Government, on the day next, to receipt of communciation from Delhi, had called for remarks from the sponsoring authority. Sponsoring authority had taken seven days to offer his remarks during which period two holidays had intervened. Even on the day next to the receipt of parawar remarks, State Government had forwarded the same to the Government of India. Government of India had disposed of representation in the case of detenu in H.C.P.No. 1853 of 1993 on the day next to receipt of remarks, while in the other H.C.P. it had taken one more extra day. On these facts, we are unable to hold, that there was inordinate delay and unconscionable delay in the disposal of representations of detenus by the Central Government. Merely because the rejection orders read, that the detenus had forwarded representations to a wrong address, on the peculiar facts available, such a statement cannot enure in favour of the detenus. The first ground shall stand rejected. 11. The second and third grounds can be disposed of together, since the foundation for both the grounds, is the same. That the Superintendent of Police, N.I.B. was present, during search, cannot admit of any doubt, since the search list supplied to the detenus, shows, that he had affixed his signature. Both the search lists also indicate that the respective detenus had signed on completion of the search process, in acknowledgment of receipt of a copy, of the said search list. That the Superintendent of Police, N.I.B. was present, during search, cannot admit of any doubt, since the search list supplied to the detenus, shows, that he had affixed his signature. Both the search lists also indicate that the respective detenus had signed on completion of the search process, in acknowledgment of receipt of a copy, of the said search list. As rightly pointed out by the learned Additional Public Prosecutor, the original search list is usually forwarded to the concerned court, soon after search. Hence, the original of the search list, cannot naturally be supplied to the detenus. An authenticated copy of the search list, is good enough material, for application of mind by the detaining authority. Further, the statements of both the detenus, reveal, that at 6.30 p.m. on 27. 1993 from their possession on production, herein was seized by N.I.B. police. There was sufficient material before the detaining authority in the form of the original search order, true copies of search list and confession statements of the detenus, to arrive at his subjective satisfaction, about involvement of the detenus, in illicit trafficking in narcotic drugs. Since we are able to find from the search list, that the Superintendent of Police, had affixed his signature in the said list, mere omission of witnesses, to speak to the fact of signing of search list by the Superintendent of Police, cannot vitiate the subjective satisfaction arrived at by the detaining authority, for he had before him, not only the search list, but also the statement of the Sub Inspector of Police, that the Superintendent of Police had attested the search list. Proper application of mind by the detaining authority, to the material placed before him, is clearly evident. Again there is no susbtance in the submission made, that there was no material furnished to the detenu, to show that the contention of the search order were translated in Tamil and explained to the detenus as mentioned in the grounds of detention. As a matter of fact, a copy of the first information report has been furnished to each one of the detenus. The contents of the first information report, affirm that that the Sub Inspector of Police, N.I.B., C.I.D. had not only revealed his identity, but had also shown the search order and thereafter explained its contents in Tamil, subsequent to which both the detenus had affixed their signatures. The contents of the first information report, affirm that that the Sub Inspector of Police, N.I.B., C.I.D. had not only revealed his identity, but had also shown the search order and thereafter explained its contents in Tamil, subsequent to which both the detenus had affixed their signatures. We also find, that on the search order itself, Sub Inspector of Police, N.I.B. had made an endorsement, that he had read over and explained in Tamil the contents thereof to the detenus, in accordance whereof, the detenus themselves had affixed their signatures. As we have already stated, there is nothing surprising in the original documents having been forwarded to the concerned court. As long as the authenticated copies of those documents do not create any suspicion and had not created any such suspicion in the mind of the detaining authority, it will be idle to contend that originals of those documents alone should have been placed before the detaining authority. If the detenus had any doubt about the authentication they could have indicated the same in their representations and asked for copies of original documents to satisfy themselves about their genuineness. That had not been done. Equally, no complaint can be made merely because a true copy of the remand order and remand report had been furnished to the detenus, after translating their contents in Tamil. 12. We find no merit, whatever, in these habeas corpus petitions. Both of them shall stand dismissed.