Chinna Ponnu v. The Secretary to the Government & Others
2005-09-15
P.SATHASIVAM, S.SARDAR ZACKRIA HUSSAIN
body2005
DigiLaw.ai
Judgment :- (Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for records of second respondent in Cr.M.P.No.18/2005 dated 06-04-2005, setting aside the order of detention, directing the respondent to produce the detenu by name Kundan @ Raman, son of Ponniah Moopper, aged about 35 years before this Court, now detained in Central Prison, Madurai and setting him at liberty.) P. Sathasivam, J.,) Petitioner is the wife of the detenu by name Kundan @ Raman. She challenges the detention order dated 06-04-2005 detaining her husband Kundan @ Raman as "Drug Offender" under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982). 2. Heard learned counsel for petitioner as well as learned Additional Public Prosecutor for respondents. 3. Learned counsel appearing for the petitioner, after taking us through the grounds of detention and connected materials, raised the following contentions: i) Though sample was taken to the extent of 100 grams of Ganja, the Chemical Analyst's report shows that the quantity was 102 grams; and the detaining authority failed to take note of the above variation; ii) Though it is stated that the sample was sent in a Kaky paper, the Chemical Analyst's report shows that the sample was sent in a polythene cover and this was not noticed by the detaining authority; iii) The mandatory provision of Section 50 of NDPS Act has not been complied with and the detaining authority failed to consider this aspect and failure on the part of the sponsoring authority, third respondent leads to vitiation the detention order. 4. Learned Additional Public Prosecutor met all the above contentions. 5. In so far as the first contention relating to discrepancy in the weight of Ganja sent for chemical examination, in para 5 of the counter affidavit, the detaining authority has explained that the net weight noted in the sample is approximately as 100 grams. The Analyst's report shows the weight of contraband as 102 grams. As rightly explained, the different is not giving much variation.
The Analyst's report shows the weight of contraband as 102 grams. As rightly explained, the different is not giving much variation. As rightly pointed out, accuracy like gold jewels cannot be expected in a matter like this, and even other wise the variation being only 2 grams and the net weight of the sample sent was approximately 100 grams, we feel that the contention is not tenable and liable to be rejected. 6. Coming to the second contention, namely, contradiction over the condition of sample cover, here again, the detaining authority has explained that out of 1 K.G of Ganja seized, 100 grams was taken as a sample and no sample will be taken in direct Kaki paper. It is also stated that there is no chance of changing of sample since the sample has been sent through Court and result was also received by the Court which shows its genuineness. Further, it is not in dispute that the sample cover contained signatures of the detenu apart from other concerned police officials. Learned Additional Public Prosecutor has also brought to our notice that the reference made in the mahazar which shows that after weighing the seized Ganja, sample was taken to the extent of 100 grams, the same was put in small polythene bag followed by Kaki paper cover and thereafter the same was sent for Chemical analysis. This factual aspect is clear in the mahazar, and copy of the same had been served to the detenu-vide page 16 of the paper book. In the light of the same, the second contention is also liable to be rejected. 7. Coming to the last contention, namely, non compliance of Section 50 of the N.D.P.S.Act, in para 9 of the counter affidavit, the detaining authority has denied the above claim. Section 50 (1) makes it clear that any Officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, takes such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. It makes it clear that when the accused requires to be checked in the presence of officials or Magistrate, the investigation officer shall take steps for it.
It makes it clear that when the accused requires to be checked in the presence of officials or Magistrate, the investigation officer shall take steps for it. In the case on hand, it is brought to our notice that the detenu had voluntarily given his consent that he might be checked by investigation officer himself and he did not require to be checked in the presence of Gazetted Officer or Magistrate. In this regard, it is relevant to note page 17 of the paper book supplied to the detenu which contains consent letter of the detenu. The following questions and answers are relevant: "nfs;tp& cd; kPJ re;njfk; cs;sJ. Cd;id nrhjidapl ntz;Lk;? gjpy;& vd;id jhq;fns nrhjidaplyhk;. nfs;tp& cd;id mUfhikapy; cs;s bf$l; MgPru; Kd;g[ nrhjidapl ntz;Lk;? gjpy;& ntz;lhk;. Ehd; fQ;rh itj;jpUf;fpnwd;. ePpq;fns nrhjidaplyhk;. After saying so, the detenu has put his thumb impression acknowledging the above statement. In the light of the same, we are satisfied that there is no violation of Section 50 of the N.D.P.S. Act as stated by the petitioner. 8. Under these circumstances, we do not find any error or infirmity in the order of detention; consequently, the Habeas Corpus Petition fails and the same is dismissed.