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2007 DIGILAW 2590 (MAD)

Kavitha v. Commissioner of Police Greater, Chennai

2007-08-16

P.K.MISRA, R.BANUMATHI

body2007
Judgment : Per Ms. R. BANUMATHI, J. 1. The petitioner has challenged the detention order dated 29.1.2007, whereby, her father has been detained detained under Act 14/ 1982 branding him as “Drug Offender” as contemplated under Section 2(c) of the said Act. 2. The detenu had earlier come to adverse notice in three cases for being found in possession and selling of ganja in H.6 Dr. R.K. Nagar Police Station Cr. Nos. 668/2004, 375/2005 and 1588/2005. On 26.12.2006, the NIBCID has received reliable information that the detenu is selling ganja at Bharathi Nagar, 6th Street, near Vinayagar Temple, Korukkupet, Chennai. The NIBCID went to the spot and after observing the formalities of the Act, on being searched the detenu was found to be in possession of 4.750 kgs of ganja in polythene bag. That apart in his bag, the detenu was also found to be in possession of four packets, each containing 25 gms of ganja, totaling 100gms and the said packets were taken as sample and labelled. Sample of abut 50 gms were taken in two polytyhene covers and the same were sealed and labelled. For the alleged possession and selling of ganja, a case was registered in Cr.No. 91/2006 U/s. 8 (c) read with 20(b), (ii) (B) of NDPS Act. On being satisfied that the detenu is acting in a prejudicial manner to the maintenance for public order and public health, the detention order was clapped on the detenu. 3. Even though several contentions were raised and argued as well, the learned counsel for the petitioner mainly focussed his attention on the discrepancy in the quantity of ganja alleged to be in possession of the detenu. In the grounds of detention, it is mentioned that the detenu was in possession of 4.750 kgs. In polythene bag. Out of which, two samples of each 50gms were taken in two polythene bag. Out of which, two samples of each 50 gms were taken in two polythene covers. Apart from 4.750 kgs, the detenu was also found to be in possession of four packers, each weighing 25 gms. The learned counsel for the petitioner has drawn out attention to the Remand Report (Booklet Page No. 69) wherein, it is mentioned that “… the accused was found in possession of 4.750 kgs. of ganja in a violet colour polythene bag on his right hand….”. The learned counsel for the petitioner has drawn out attention to the Remand Report (Booklet Page No. 69) wherein, it is mentioned that “… the accused was found in possession of 4.750 kgs. of ganja in a violet colour polythene bag on his right hand….”. In the Tamil translation of the Remand Report, it is stated as TABLE In the grounds of detention, the remaining ganja is mentioned as 4.650 kgs were packed in the same bag. Pointing out the discrepancy in the wright, the learned counsel for the Petitioner at the foremost contended that the variation in respect of the quantity of ganja is likely to cause a confusion in the mind of the detenu depriving him of making effective representation. 4. In our view, the above contention does not merit acceptance. After drawing two samples of 50gms each, the remaining ganja would be 4.650 kgs and in the grounds of detention, it is rightly mentioned as remaining ganja 4.650 kgs. Placing reliance upon Subbaiah v. Commissioner of Police, Madras city , 1993 L.W. (Crl.) 113 the learned Additional Public Prosecutor has submitted that trivial typographical error cannot affect the detention order causing prejudice to the detenu. The discrepancy in the weight of ganja in the English version of Remand Report and the Tamil version of Remand Report is trivial and such typographical error cannot be said to have caused any prejudice in the mind of the detenu. 5. The next contention urged by the learned counsel for the petitioner is that the detenu was arrested on 26.12.2006 in Cr.No. 91/2006 and the order of detention was passed only on 29.1.2007 and the live link is snapped. The learned Additional Public Prosecutor has submitted that a huge quantity of 4.750 kgs of ganja was seized from the detenu and only on being satisfied, the Sponsoring Authority and initiated step a for detention, after collection of materials. Since, huge quantity of ganja was seized from the detenu and only on being satisfied that the detenu was likely to be released on bail, the detention order was passed. It cannot be contended that the occurrence had become stale, regulating in snapping of live link. 6. In our view the ground of challenge viz. delay inconsideration the representation mustsucceed. Since, huge quantity of ganja was seized from the detenu and only on being satisfied that the detenu was likely to be released on bail, the detention order was passed. It cannot be contended that the occurrence had become stale, regulating in snapping of live link. 6. In our view the ground of challenge viz. delay inconsideration the representation mustsucceed. it is apparent from the chart that the representation dated 27.2.2007 was considered, after calling for remarks from the Colectorate, the Minister has dealt with the file on 3.3.2007 and rejected the representation. Though the rejection letter was prepared on 5.3.2007, the same was sent to the detenu ony on 10.3.2007. 7. Right of early consideration of representation also includes communication of decision as to the rejection of representation. In Harish Pahwa v. State of Uttar Pradesh , 1981 Crl. L.J. 750 (SC) the Supreme Court has laid emphasis on the fact that not only that the representation of the detenu must be considered and dealt with continuously, but that final decision be taken and that decision be communicated to the detenu. It seems to us that in Harish Pahwas case, the Supreme Court has viewed the communication part of rejection of representation as a necessary facet to the consideration of the representation. Normally, if a representation is made or if there is an appeal for the redressal for a grievance and a decision is taken it must be communicated to the person who is interested therein. In our view, unexplained delay in sending the rejection letter to the detenu has the effect of vitiating the detention order. 8. In the present case, though the rejection letter was prepared on 5.3.2007, it was sent to the detenu only on 10.3.2007, and served to the detenu on 13.3.2007, there is no explanation fro delay is sending the rejection letter to the detenu, which in our view would vitiate the detention order. 9. The learned counsel for the petitioner has further submitted that the satisfaction of the Detaining Authority as to the possibility of the detenu being released on bail is a vague statement and it is not supported by any cogent material. it was further submitted that when huge quantity of ganja was seized, there was no real possibility of the detenu coming out on bail. it was further submitted that when huge quantity of ganja was seized, there was no real possibility of the detenu coming out on bail. Under Section 20 (c) of NDPS Act, if the contraventions in respect fo cannabis involves commercial quantity, the offence is punishable for a term not less than ten years, which may extend to ten years also. Sec. 37 of the Act imposes restriction in granting bail. 10. Learned counsel for the State, on the other hand, placed reliance upon the decisions of the Supreme Court reported in Ibrahim Nazeer v. State of T. N. (2006) 3 SCC (Cri) 17 : (2006) 2 MLJ (Cri) 890 and Senthamilselvi v. State of Tamil Nadu (2006) 3 SCC (Cri) 50 : (2006) 2 MLJ (Cri) 1157 in support of his contention that the Court should not interfere with the subjective satisfaction of the Detaining Authority on the above aspect. Since the order of detention is being quashed on the ground relating to delay in disposal and communication of the result of the representation it is not necessary for us to go into the aforesaid question. 11. For the foregoing reasons, the impugned detention order is set aside and this Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case.