IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.07.2010 C O R A M THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Habeas Corpus Petition No.1825 of 2009 M.Buhari, ..Petitioner S/o.Mohammed Hussain Vs. 1. The State of Tamil Nadu represented by the Secretary to the Government Public (SC) Department Fort St. George, Chennai-600 009 2. The Union of India represented by the Secretary to the Government Ministry of Finance, (COFEPOSA UNIT) Department of Revenue, New Delhi 3. The Superintendent of Central Prison Central Prison, Puzhal, Madras-66 ..Respondents PRAYER: Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus to call for the records in connection with the the order of detention passed by the first respondent dated 23.09.2009 in G.O.No.S.R.1/20-11/2009 against the petitioner, who is confined at Central Prison, Puzhal, Chennai and set aside the same and to direct the respondents to produce the detenu viz. M.Buhari, son of Mohammed Hussain before this Hon'ble Court and set the detenu at liberty. For Petitioner : Mr.S.Palanikumar For Respondents : Mr.Babu Muthu Meeran, Addl. P.P. (for R1 and R3) Mr.C.V.Ramachandramurthy (for R2) Central Government Standing Counsel https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by P.R.SHIVAKUMAR, J.) This Habeas Corpus Petition has been filed against the order of detention passed by the first respondent in respect of the detenu M.Buhari under Section 3(1)(i) of COFEPOSA Act, 1974. The said order of detention was passed on the subjective satisfaction of the first respondent that clamping such an order became necessary for preventing the detenu from smuggling of goods in future. The said order of detention under COFEPOSA Act, 1974 is challenged in this Habeas Corpus Petition by the detenu himself. 2. The facts leading to the filing of the present Habeas Corpus Petition, can be briefly, stated thus:- One Shahul Hameed holding Passport No.E1079207 dated 20.03.2002 was caught by the officers of the Directorate of Revenue Intelligence, Coimbatore when they checked his baggage based on specific intelligence that he was attempting to smuggle huge quantity of Ketamine Hydrochloride keeping the same concealed in his baggage. On being questioned, he revealed the involvement of the petitioner herein in the above said smuggling of Ketamine Hydrochloride and the fact that the petitioner used the above said Shahul Hameed, a close relative of the petitioner for the purpose of carrying the contraband. The samples drawn from the alleged contraband seized from the baggage of Shahul Hameed, on being tested in the Forensic Science Department, Government of Tamil Nadu, Narcotics Division, Chennai, conformed to the definition of Ketamine Hydrochloride. The detaining authority forming an opinion that Ketamine Hydrochloride was a restricted item for export and could be exported only after obtaining a No Objection Certificate from the Narcotics Commissioner, Gwalior, India, chose to pass the impugned order of detention. 3. Though several grounds have been raised assailing the order of detention, the learned counsel for the petitioner, mainly relies on the contention that there was non-application of mind on the part of the detaining authority as to whether Ketamine or Ketamine Hydrochloride is covered by the Notification No.67(RE-2007)/ 2004-2009 dated 27.12.2007; that there is also non-application of mind on the part of the detaining authority regarding the definition of contraband, which is evident from the fact that it has been defined as Ketamine at one place and as Ketamine Hydrochloride at another place and that the detaining authority failed to consider that the restriction regarding export, as per the said notification, was imposed only in respect of Ketamine and not in respect of Ketamine Hydrochloride. 4. We heard the submissions made by Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor representing the respondents 1 https://hcservices.ecourts.gov.in/hcservices/ and 3 and Mr.C.V.Ramachandramurthy, learned central government standing counsel representing the second respondent on the above said submissions. 5. The first and foremost contention of the learned counsel for the petitioner is that though the Directorate of Revenue Intelligence authorities might have found out 10.5 Kgs of Ketamine Hydrochloride from the baggage of the alleged carrier Shahul Hameed, there is an ambiguity as to whether the substance is Ketamine or Ketamine Hydrochloride and that there is utter confusion regarding the same, which is writ large in the grounds of detention itself, wherein the alleged contraband is described as Ketamine at one place and as Ketamine Hydrochloride at another place. In addition to such discrepancy in describing the contraband, there is also absence of consideration as to Whether Ketamine and Ketamine Hydrochloride, are one and the same substance. 6. In this context, it is relevant to mention that we have already held in our order in H.C.P.Nos.1303 and 1306 of 2009 dated 18.06.2010 that pure Ketamine is available in powder form and Ketamine Hydrochloride, which is also in powder form, is an organic compound of Ketamine, different from pure Ketamine. In view of the same and in the light of the view expressed by the earlier division benches of this court in (1) N.K.Jawahar Ali and others vs. The State of Tamil Nadu, rep. by its Secretary, Public (SC) Department, Fort St. George, Chennai – 600 009 and others reported in 2009-2-L.W. (Crl.) 1285, and (2) Esakkimuthu vs. State represented by Commissioner of Police, Office of the Commissioner of Police, Kokkirakulam, Tirunelveli City and Another reported in (2009) 3 MLJ (Crl) 1, the failure on the part of the detaining authority to consider whether Ketamine and Ketamine Hydrochloride are one and the same substance would amount to non-application of mind and the same would vitiate the order of detention. 7. The learned counsel for the petitioner also drew our attention to the Notification No.67(RE-2007)/2004-2009 dated 27.12.2007 under which restriction has been imposed only regarding Ketamine and not on export of Ketamine Hydrochloride. The attention of this court was also drawn to the report of Forensic Sciences Department, Government of Tamil Nadu, Narcotics Division, Chennai-4, a copy of which is available in page 183 of the paper book. In the said report, a finding was recorded to the effect that the samples drawn from the alleged contraband seized from Shahul Hameed was Ketamine Hydrochloride. At the bottom of the report, the following notes are found. 1.Ketamine Hcl is the hydrochloride salt of ketamine https://hcservices.ecourts.gov.in/hcservices/ 2.Ketamine Hcl is not covered under NDPS Act of 1985 3.Ketamine Hcl is an animal anaesthetic and is occasionally used as Human anaesthetic also 4.Ketamine is a Psychedelic substance similar to phencyclidine (PCP) 8. From the said report and the explanatory note 1 and 2, it is quite obvious that Ketamine Hydrochloride is different from Ketamine. It is also obvious that Ketamine Hydrochloride is not covered under the NDPS Act, 1985. A reading of the said notice in conjunction with the notification referred to supra, will make it obvious that for exporting Ketamine alone, a 'No Objection Certificate' from the Narcotics Commissioner is needed and for exporting Ketamine Hydrochloride, no such 'No Objection Certificate' is needed. Therefore, we are convinced with the tenability of the contention raised on behalf of the petitioner that the observation of the detaining authority that the petitioner/detenu was indulging in smuggling of Ketamine through carriers much against the above said notification, shows non-application of mind. 9. The detaining authority has also committed an error in interpretting the said notification by stating that for exporting Ketamine Hydrochlorid, a 'No Objection Certificate' from the Narcotic Commissioner is needed. The notification prohibits export of Ketamine without a 'No Objection Certificate' from the Narcotics Commissioner, and no such requirement is found in the said notification cited by the detaining authority in respect of Ketamine Hydrochloride. The discrepancy regarding the description of the contraband found in the detention order itself, namely describing it at one place as Ketamine and describing it at another place as Ketamine Hydrochloride, also shows non-application of mind on the part of the detaining authority. We are convinced that the order of detention imposed in this petition is vitiated for the above said reasons. Accordingly, we are inclined to set aside the order of detention. 10. In the result, the Habeas Corpus Petition is allowed and the impugned order of detention, dated 23.09.2009 is set aside. The detenu M.Buhari, son of Mohammed Hussain is ordered to be set at liberty forthwith, unless his continued custody is required in connection with any other case. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar asr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to the Government Public (SC) Department Fort St. George, Chennai-600 009. 2. The Secretary to the Government of India, Ministry of Finance, (COFEPOSA UNIT) Department of Revenue, New Delhi. 3. The Superintendent of Central Prison, Central Prison, Puzhal, Madras-66. 4. The Public Prosecutor, High Court, Madras-600 104. 5. The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai-9. + 1 c.c. to Mr. S. Palanikumar, Advocate. S.R.No.48065. H.C.P.No.1825 of 2009 BV (CO) GSK 16.07.2010. https://hcservices.ecourts.gov.in/hcservices/