Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1873 (MAD)

S. Rani v. The Secretary to Government

2005-12-15

P.SATHASIVAM, S.K.KRISHNAN

body2005
Judgment :- (Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Habeas Corpus as stated therein.) P. Sathasivam, J. The petitioner is wife of the detenu by name Kumar @ Senthil Kumar. She challenges the detention order dated 08.08.2005, wherein her husband was detained under Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short "NDPS Act"). 2. Heard Mr. R. Rajarathinam, learned counsel for the petitioner, Mr. A. Kandasamy, learned Additional Public Prosecutor for the first respondent and Mr. P. Kumaresan, learned Additional Central Government Standing counsel for the second respondent. 3. Though several grounds have been raised in the affidavit questioning the impugned detention order, at the foremost, learned counsel appearing for the petitioner projected that in the absence of cogent materials available before the Detaining Authority to arrive at a subjective satisfaction that there was an imminent possibility of coming out on bail, the Detaining Authority, committed an error in passing the impugned order of detention. 4. In the grounds of detention, the Detaining Authority has stated, "I am also aware that you are in remand and lodged at Central Prison, Chennai in NIB CID Unit, Chennai Cr.No.25/2005 and the remand has been extended periodically till 9.8.2005. I am aware and there is imminent possibility of your coming out on bail for the above case i.e. Crime No.25/2005 by filing bail application in the Court, since in similar cases bails are usually granted by the NDPS Court or High Court after efflux of certain time and if you come out on bail, you will continue to indulge in similar activities of illicit trafficking in narcotic drugs in future. . ... " 5. With reference to the above statement of the Detaining Authority, it is brought to our notice that the detenu was in custody from 12.03.2005. It is not in dispute that no bail petition was filed or pending when the detention order was passed. It is relevant to note that a case was registered against the detenu under NIB CID Unit Cr.No.25/2005 under Section 8 (c) r/2 21 (c) of NDPS Act and as rightly pointed out by the learned counsel for the petitioner, the Detaining Authority failed to take into consideration Section 37 of the NDPS Act. It is relevant to note that a case was registered against the detenu under NIB CID Unit Cr.No.25/2005 under Section 8 (c) r/2 21 (c) of NDPS Act and as rightly pointed out by the learned counsel for the petitioner, the Detaining Authority failed to take into consideration Section 37 of the NDPS Act. If the seizure of contraband is of commercial quantity, then Section 37 of the NDPS Act would come into play. In such circumstances, the assumption that there is imminent possibility of coming out on bail is incorrect in view of the statutory bar. This aspect ought to have been taken into consideration while the Detaining Authority passed the detention order. In view of the same, the inference that was drawn by the Detaining Authority that there is imminent possibility of the detenu coming out on bail is not supported by any material, inasmuch as no application for bail is found to have been filed or pending. Mere ipsi dixit of the officer passing the order of detention is not the criterian. There should be some material to infer that the detenu would come out on bail, like, pendency of the application for bail. Added to this, we have already referred to the statutory bar under the NDPS Act. Though the learned Additional Public Prosecutor stated that such grounds are being taken usually, in the absence of any material and in view of our observation, we are unable to accept the said stand. In the light of our above discussion, this habeas corpus petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his detention is required in connection with any other cause.