IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE D.HARI PARANTHAMAN Habeas Corpus Petitions No.757, 765, 778, 792, 805, 808, 809, 967, 993, 1171, 1222, 1807 and 1808 of 2010 H.C.P.757 of 2010: Tmt.Sasikala ... Petitioner Vs. 1.The Commissioner of Police, Chennai City Police, Egmore, Chennai-600008. 2.The State, represented by the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600009. ... Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, directing the respondents to produce the detenu Venkatesan, son of Ramachandran TPDA No.9278 who is now detained in Central Prison, Puzhal, Chennai in pursuance to the detention order passed by the first respondent on 8.4.2010 in No.197/2010 before this Court, call for the records of the same and set aside the same and set the detenu at liberty. HCP No.765 of 2010 1 M.SANTHA [ PETITIONER ] Vs https://hcservices.ecourts.gov.in/hcservices/ 1 THE SECRETARY TO GOVERNMENT STATE OF TAMIL NADU HOME PROHIBITION AND EXCISE DEPARTMENT FORT ST GEORGE, CHENNAI-9. 2 THE COMMISSIONER OF POLICE CHENNAI CITY EGMORE CHENNAI-8. [ RESPONDENT ] To call for the records relating in the order of detention bearing reference NO.193/2010 dated 08/04/2010 passed by the 2nd respondent and quash the same and direct the Respodents for production of the body of the detenue V.MANICKAM, S/o.Velayutham now detained at Central Prison, Puzhal,Chennai and set him at liberty. HCP No.778 of 2010: 1 SUGASHNI [ PETITIONER ] Vs 1 THE SECRETARY TO GOVERNMENT STATE OF TAMILNADU HOME, PROHIBITION AND EXCISE DEPARTMENT FORT ST.GEORGE, CHENNAI 9 2 THE COMMISSIONER OF POLICE EGMORE, CHENNAI-8. [ RESPONDENT ] to call for the records and quash the same leading to the detention of the petitioner's husband namely T.S.Sekar, son of Subramani, aged 33 years, detained under Act 14/82 vide detention order dated 8.4.2010 on the file of the 2nd Respondent herein made in BDFGISSV No.200/10 the same and consequently direct the respondent herein to produce the body and person of the said detenue before this Hon'ble court and thereafter set him liberty from Central Prison, Puzhal, Chennai. HCP No.792 of 2010 1 REKHA [ PETITIONER ] Vs https://hcservices.ecourts.gov.in/hcservices/ 1 THE SECRETARY TO THE GOVT OF TAMILNADU HOME PROHIBITION AND EXCISE DEPT SECRETARIAT, CHENNAI-9.(Respondent in HCP 792, 805,808, 809, 967, 993, 1171 & 1222/2010) 2 THE COMMISSIONER OF POLICE CHENNAI POLICE , EGMORE, CHENNAI-8. to call for the records in Memo No.199/BDFGISSV/2010 on the file of the 2nd Respondent quash the detention order dated 8.4.2010 and direct the production of the detenu Ramakrishnan, S/o.Devarajan presently detained at the Central Prison, Puzhal, Chennai under the T.N.Act 14/82 as a Drug offender. HCP No.805/2010 Malarvizhi ... Petitioner to call for the entire records, related to petitioner husband's detention under T.N.Act 14/1982 vide detention order dated 8.4.2010 on the file of the 2nd Respondent herein, made in proceedings No.191/10, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely Vijayakumar, S/o.Muthulingam before this Hon'ble High Court and set the petitioner's husband at liberty from detention now petitioners husband detained at Central Prison, Puzhal, Chennai. HCP.808 of 2010: Jamunabai (Petitioner) to call for the entire records, related to petitioner husband's detention under T.N.Act.14/82 vide detention order, dated 8.4.10 on the file of the 2nd respondent herein made in proceedings No.196/10 quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely Govendhan, S/O.Ramalingam before this court and set the petitioner's husband at liberty from detention, now petitioner's husband detained at central prison, puzhal, Chennai -66. HCP.809 of 2010: G.Jayanthi (Petitioner) https://hcservices.ecourts.gov.in/hcservices/ to call for the entire records, related to petitioner brother's detention under T.N.Act.14/82 Vide detention order dated 8.4.2010 on the file of the 2nd respondent herein, made in proceedings No.198/10 quash the same as illegal and consequently direct the respondents herein to produce the petitioner's brother namely Kirubakaran, S/o. Jayabalan, before this court and set the petitioner's brother at liberty from detention, now petitioner's brother detained at central prison, puzhal, Chennai -66. HCP 967 of 2010: Mrs. Nirmala (Petitioner) to call for the entire records relating to the detention of my husband Mr.Pradeep Kumar Chordia, S/o. Suganchand detained under Act.14/82 as a Drug offender vide detention order dated 8.4.10 on the file of the 2nd respondent herein, made in Memo No.194/BDFGISSV/10 set aside the same and consequently direct the respondents herein to produce the detenu before this court and set him at liberty from the Central Prison, Puzhal,Chennai. HCP.993/10 John Basha (Petitioner) to call for the records in connection with the order of detention passed by the 2nd respondents dated 8.4.2010 in Memo No.201/BDFGISSV/2010 against the petitioner John Basha S/o. Sabsan Sahib, who is confined at central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this court and set him at liberty and pass such order. HCP 1171 of 2010: Mrs. Pushpa (Petitioner) to call for the records pertaining to the order of detention passed by the 2nd respondents in No.304/10 dated 24/5/2010 set aside the same, direct to produce the detenue Mr.Rajesh Mehta S/o. Ramesh Mehta detained as Drug Offender in Central Prison, at Puzhal before this court and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ Hcp.1222 of 2010: Nisha (Petitioner) to call for the records of the Commissioner of Police, the 2nd respondent herein pursuant to his order under Memo No.305/BDFGISSV/2010 dated 24.5.10 in So far as Mr. Sanjay Kumar is concerned and set aside the detention order produce the person and body of Mr. Sanjay Kumar S/o. Suresh Kumar before this court and set him at liberty. H.C.P.No.1807 of 2010 N.M.SATHAMMAI [ PETITIONER ] Vs 1 THE SECRETARY TO GOVERNMENT DEPARTMENT OF HOME PROHIBITION AND EXCISE DEPARTMENT FORT ST.GEORGE CHENNAI -009 2 THE COMMISSIONER OF POLICE EGMORE, CHENNAI 3 THE INSPECTOR OF POLICE P6 KODUNGAIYUR POLICE STATION PULIYANTHOOPU CHENNAI CR.NO.132 OF 2010 4 THE SUPERINTENDENT OF CENTRAL PRISON PUZAL CHENNAI -66 5 THE DEPUTY SUPERINTENDENT OF POLICE CBCID SIDCO ELECTRONIC COMPLEX BLOCK -3 FIRST FLOOR INDUSTRIES ESTATE GUINDY CHENNAI -32 ...RESPONDENTS to call for the records pertainign to the detention order made in Memo NO.192/BDFGISSV/2010 dated 08.04.2010 on the file of the 2nd respondent as confirmed by the 1st respondent to quash the same and pass such orders. https://hcservices.ecourts.gov.in/hcservices/ H.C.P.NO.1808/10 A.SUYAMBULINGAM (elder brother of detenue now detained in Central Prison, Puzhal, TPDA No.9276) ...PETITIONER Vs 1 THE COMMISSIONER OF POLICE EGMORE CHENNAI 2 THE SECRETARY TO GOVERNMENT HOME PROHIBITION AND EXCISE DEPARTMENT CHENNAI -09 ...RESPONDENTS Directing the respondent to produce the detenue Prabhakar @ Ravi, S/o. Arumugam TPDA No.9276 who is now detained in Central Prison, Puzhal, Chennai in pursuance to the detention order passed by the first respondent on 8.4.2010 in No.195/2010 before this court call for the records set aside the order and set the detenue Thiru Prabhakar @ Ravi at liberty forthwith. For petitioner in HCP.757/10 : Mr.P.Anbarasan For petitioner in HCP.765/10 : Mr.S.Ashokkumar, S.C.for Mr.Sunder Mohan For petitioner in HCP.778/10 : Mr.S.Sugendran For petitioner in HCP.792/10 : Mr.M.A.Rua For petitioners HCPs.805, 808 and 809/10 : Mr.Abudukumar Rajaratnam for Mr.C.C.Chellappan For petitioner in HCP.967/10 : M/s.Surana & Surana For petitioner in HCP.993/10 : Mr.A.Nirmal Kumar For petitioner in HCP.1171/10:Mr.A.D.Jagadish Chandra For petitioner in HCP.1222/10:Mr.A.M.Venkatakrishnan https://hcservices.ecourts.gov.in/hcservices/ For petitioner in HCP.1807/10:Mr.N.Jothi for Mr.M.C.Govindan For petitioner in HCP.1808/10:Mr.Rahamat Ali for M/s.Razhaq Associates For respondents in all the matters : Mr.P.S.Raman, Advocate General assisted by Mr.Babu Muthumeeran, APP COMMON ORDER ELIPE DHARMARAO, J. In all these Habeas Corpus Petitions, the detention orders slapped on the detenus, branding them as 'drug offenders', as contemplated under Section 2(e) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), are being challenged by their kith and kin on relatively similar grounds. Since being inextricably interconnected with each other, all these matters are heard together and are being disposed of by this common order. 2. On the allegation that in the money-spinning health sector, these detenus and others, collected the expired drugs from various pharma companies and recycled them as valid drugs, by altering the batch number and expiry dates and pushed them back into the pharmaceutical retail market, based on a complaint lodged by the Drug Inspector, Drug Control Department, a case in Crime No.132/2010 came to be registered against the detenus and others by the Inspector of Police, Crime, P-6 Kodungaiyur Police Station, Chennai for the offences under Section 420, 468 and 465 IPC. The FIR came to be altered subsequently, inserting Section 328 IPC read with Sections 33(eea), 17(B) and the 27 of the Drugs and Cosmetics Act, 1940. 3. It is also alleged that the accused joining together are collecting the expired drugs from the medical shops and by pouring spray over the seal affixed in the expired medicine and erasing the same with a cloth and by putting a fresh seal over the erased portion as if the drug is in live and re-distributing the expired drugs to the medical shops for sale show that they have no regard for human life and it is a very heinous crime committed against the society at large. https://hcservices.ecourts.gov.in/hcservices/ 4. During the course of investigation, not only the detenus, but other accused were also arrested leading to seizure of spurious drugs in large quantities and since the act alleged to be committed on the part of the accused persons is offending the public health and order, since they acted in a manner prejudicial to the maintenance of public health and order and further to prevent them from indulging in such further activities in future, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14/82, the impugned orders of detention were slapped on the detenus by the respondents, which are under challenge in these petitions before us. 5. Heard the learned counsel appearing for all the parties. 6. Before embarking upon the pleas and counter pleas of respective parties, we wish to place on record the fact that during the course of hearing of these matters on 13.12.2010, Mr.N.Jothi, the learned counsel appearing for the petitioner in H.C.P.No.1807 of 2010 has informed us that his client has given a letter to the Registry requesting to de-link the said HCP from this batch of petitions and to post it before a different Division Bench. Pursuant thereto, when this Court is about to pass orders to post all these matters before another Division Bench so as to have common hearing, all other learned senior counsel appearing for the detenus, in one voice, have requested this Court to proceed with the hearing of these matters and if need be, the matter wherein Mr.N.Jothi is appearing may alone be posted before another Division Bench. While so, de horse the letter of his client, Mr.N.Jothi has expressed his willingness to go on with his arguments before us, further saying that he will withdraw the said letter of his client. Thereupon, the said HCP.No.1807 of 2010 has also been taken up along with this batch of petitions. 7. During arguments, the learned counsel appearing for respective parties have raised various points, which we will deal with in order and one after the other, in seriatim. Arguments regarding non-mentioning of the amended provision of law in the detention order: 8. The learned counsel appearing for the detenus would argue that though the detention orders, all dated 8.4.2010 came to be slapped on all the detenus branding them as 'drug offenders', no offence under the Drugs Act had been quoted in the orders of detention, which would clearly show the non-application of mind on the part of the detaining authority. They would further argue https://hcservices.ecourts.gov.in/hcservices/ that the FIR originally registered only under IPC offences on 16.3.2010, later came to be altered on 27.3.2010, thereby including the offences under the Drugs Act also, but, in spite of the said fact, in the detention orders passed on 8.4.2010, there was no whisper about the alteration of Sections of law, including the offences under the Drugs Act, which shows that the altered FIR was not placed before the Detaining Authority and it shows clear non-application of mind on the part of the Detaining Authority, which would vitiate the orders of detention passed against the detenus. In support of their arguments, they have placed reliance on a Division Bench Judgment of this Court in MOUN MARY vs. THE DISTRICT COLLECTOR, THOOTHUKUDI [2007-1-L.W. (Crl.) 132]. In the said case, pending consideration of the first detention order passed on 19.6.2006, an amended detention order was passed on 26.6.2006. But, the amended detention order was not placed before the Government while confirming the order of detention. In those circumstances, a Division Bench of this Court has held: "Whenever an order is passed by the detaining authority like this, time stipulation will be available for making the representation, and the detenu must be put on notice that he is having 12 days time, within which he could make the representation, i he so desires. In the instant case, it is available in the order dated 19.6.2006, but not in the amended order. Thus, it was not made known to the detenu that after amending the order, he is also having sufficient time to make his representation. Thus, the order lacks legality in all respects." Holding so, the detention order was set aside in that case. Citing the said judgment, the learned counsel appearing for the detenus would argue that applying the said ratio to the cases on hand, the detention orders are liable only to be quashed. 9. In reply, Mr.P.S.Raman, the learned Advocate General has argued that the amended FIRs. were part and parcel of the materials made available before the Detaining Authority and in support of his arguments, he has taken us through the booklets and also produced before us the original records pertaining to all these matters. 10. On factual verification of the original records and having gone through the paper books supplied to the detenus, we are able to see that the orders of detention dated 8.4.2010 were served on all the detenus on 9.4.2010 in the Central Prison, Puzhal, Chennai and the grounds of detention were served on https://hcservices.ecourts.gov.in/hcservices/ 13.4.2010. The detention orders need to be approved by the Government within twelve days, lest they shall not remain in force, as per the scheme of the Act. At this juncture, an argument has been advanced on the part of the detenus that the statutorily required approval has not been accorded by the Government within the stipulated period of twelve days and hence, even on this score, the impugned orders are liable to be set aside. 11. As has been noted by us supra, the original file has been placed before us by the learned Advocate General. On a perusal of the same, we are able to see that the detention orders were forwarded to the Government on 15.4.2010 from the Home Secretary and it is pursuant thereto that on 16.4.2010, the Government has sought for clarification from the Detaining Authority, resulting in issuance of amended detention orders by the detaining authority on 16.4.2010, followed by the approval of the detention orders by the Honourable Minister on 19.4.2010, which is well within the statutory period of 12 days from the date of passing of the detention order. Therefore, this argument advanced on the part of the detenus falls to the ground. 12. With respect to the argument that the detaining authority has failed to apply his mind to the fact of non-mentioning of the altered sections of law in the original detention order, on a perusal of the voluminous booklets supplied to the detenus, we are able to see that the requests filed by the Investigating Officer before the concerned court, praying to alter the sections of law forms part of the booklets, and as a test case we have taken the booklet filed in HCP.No.1171 of 2010 (relating to the detenu Rajesh Mehta), which contains the request filed by the Investigating Officer before the learned XIII M.M., Egmore,Chennai, praying to alter the sections of law, at Page No.260. Even with respect to the other detenus, on a thorough perusal of the booklets supplied to the detenus, we are able to see such requests filed by the Investigating Officer before the Court. Further more, almost all the detenus have filed surrender application/anticipatory bail petitions/bail petitions before the Courts concerned, mentioning therein the amended sections of law. As a test case for this aspect, we have perused the booklet supplied to the detenu Mr.Sekar (concerned with HCP.No.778 of 2010) and at page No.625 of this booklet supplied to the detenu, we are able to see the order passed by the learned VIII Metropolitan Magistrate, G.T., Chennai, accepting the surrender of the accused on 26.3.2010. In his surrender petition also, the https://hcservices.ecourts.gov.in/hcservices/ accused himself has quoted the altered sections of law. Therefore, all these factual aspects would clearly establish the fact that the detenus are very well aware of the alteration of the Sections of law and all the relevant materials have been placed before the detaining authority, who on arriving at the subjective satisfaction, has passed the orders of detention. But, by mistake or oversight, these newly inducted sections of law have not been reflected in the orders of detention, which was subsequently rectified by the detaining authority, on being pointed out by the Government, leading to issuance of an erratum. 13. At this juncture, Mr.N.Jothi, the learned counsel appearing for the petitioner in H.C.P.No.1807 of 2010 would argue that under the scheme of the Act, different duties and responsibilities have been cast on the Sponsoring Authority, the Detaining Authority and the Government and since in the case on hand, the Government has prompted the Detaining Authority to issue an erratum, the impugned orders of detention are non-est in law and therefore, need to be set aside, by awarding compensation to the detenus for being illegally detained by the respondents. 14. Though this argument advanced on the part of the learned counsel appears to be attractive, we are not able to appreciate the same since we have to bear in mind the ultimate outcome. Had not the Government sought for clarification from the Detaining Authority about the amendment of the FIR, the argument that would have been advanced on the part of the detenus would be the other way round, that the Government, while approving the order of detention, has not applied its mind. 15. In the case on hand, since the Government having gone through the voluminous material available on record was able to find the omission committed by the Detaining Authority, it has required the Detaining Authority to cure the defect, which shows its complete application of mind to the facts, circumstances and the materials made available before it by the Detaining Authority. Therefore, since the ultimate outcome is in total conformity with the procedures established under law, besides glaringly proving the application of mind of the Government to the cases on hand, this argument advanced on the part of the detenus cannot be appreciated. Further no prejudice whatsoever has been committed to the detenus by such omission of mentioning the amended sections of law in the detention orders by the detaining authority in the original orders of detention, since, as has been pointed out by us supra, it is well within the knowledge of the detenus, who have https://hcservices.ecourts.gov.in/hcservices/ even filed surrender applications/anticipatory bail petitions/bail petitions quoting the amended sections of law. 16. We are able to see from the original records and the paper books that the amended FIR was also a part of the paper book and the original record placed before the Detaining Authority and also the Government. In fact, it is not in dispute that all the detenus have filed their surrender applications/anticipatory bail petitions/bail applications before the concerned Courts, mentioning the amended sections of law, which clearly shows that they are having complete knowledge about the alteration of the FIR. Therefore, the fact which is well within the knowledge of the detenus and all others, has mistakenly been omitted by the Detaining Authority in the detention order, which, in our considered opinion, will not at all vitiate the detention orders. 17. In the judgment of the Division Bench of this Court relied on by the learned counsel for the detenus, the amended provision of law was not made known to the Government and in fact, it seems to be out of the knowledge of the detenu also. Only in those circumstances, the Division Bench has quashed the order of detention passed therein. But, in the cases on hand, as has been discussed at length supra, the material placed before the Government clearly speak to the factum of amendment of sections of law and the knowledge of the same by the detenus themselves. The Government, having considered the said amended sections of law has directed the detaining authority to issue an erratum, which was promptly complied with by the detaining authority. Therefore, the ratio lid down by the Division Bench of this Court in the said judgment has no application to the facts of the case on hand. Hence, these arguments advanced on the part of the detenus merit no consideration and accordingly, they are rejected. Arguments regarding Delay in producing the accused before the Court and the arrest of the detenus not intimated to the relatives: 18. On the part of the detenus, it has been argued that the detenus were not produced before the Magistrate within twenty four hours of their arrest, and thus violated the mandatory requirement of Section 57 of the Code of Criminal Procedure. The other argument advanced on the part of the detenus is that the arrest of the detenus was not intimated to the relatives, as has been mandated by the Honourable Apex Court in D.K.BASU vs. STATE OF WEST BENGAL [(1997) 1 SCC 416]. https://hcservices.ecourts.gov.in/hcservices/ 19. Both these arguments have been countenanced by the learned Advocate General by arguing that while counting the twenty our hours, the journey time from the place of arrest to that of the Magistrate's Court should be deleted and seeing from this perspective, there is no delay of whatsoever in producing the detenus before the Magistrate. He has also placed before us the copies of acknowledgements received from the kith and kin of the detenus, showing that the arrest of the detenus was properly intimated to them, and where there is no inmate in the address, intimation was given by affixure, thus complying with this mandatory requirement. By placing such material before us, the learned Advocate General would contend that both these arguments advanced on the part of the detenus have no legs to stand before this Court and would seek to reject the same. 20. No doubt, Section 57 of the Code of Criminal Procedure has mandated that no person shall be detained in custody without warrant for a longer period by a Police Officer, for a period more than twenty four hours. But, even in this Section 57 of the Code of Criminal Procedure, it has been mentioned that the time necessary for the journey from the place of arrest to the Magistrate's Court could be excluded, as could be seen from the wordings of Section 57 of the Code of Criminal Procedure, which is extracted hereunder for easy reference: "57. person arrested not to be detained more than twenty-four hours – No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."