1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.2 of 2011 Sagayarani .. Petitioner Vs. 1.The Commissioner of Police, Trichirapalli City, Trichirapalli. 2.The State rep. by the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 6. 3.The Inspector of Police, Palakkarai Police Station, Trichirapalli. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus directing the respondents herein to produce the detenu Raja son of Arumaidoss who has been termed as "Drug- Offender" who is now confined in Central Prison, Trichy and call for records in C.P.O./T.C./I.S./D.O.No.70/2010 dated 15.11.2010 passed by the first respondent herein and set aside the same and set the detenu at liberty. For petitioner : Mr.T.Senthil Kumar For respondents : Mr. P.Jothi Addl.Public Prosecutor ORDER (Order of the Court was made by G.M.AKBAR ALI, J) In this Habeas Corpus Petition, challenge is made to the Order of Detention of the the first respondent dated 15.11.2010 in Detention Order No.C.P.O./T.C./I.S./D.O.No.70/2010, whereby the husband of the petitioner, by name, Raja, son of Arumaidoss, was ordered to be detained branding him as a “Drug Offender” as contemplated under the Tamil Nadu Act 14 of 1982. 2. Assailing the order of detention, the learned counsel appearing for the petitioner would submit that in the detention order, the detaining authority has stated that the Judicial Magistrate has remanded him till 8.10.2010 and thereafter, the remand was periodically extended upto 16.11.2010. The learned counsel pointed out that, only upto 8.10.2010, remand order is available in the booklet furnished to https://hcservices.ecourts.gov.in/hcservices/ 2 the petitioner and the subsequent orders were not produced and there is no material available before the detaining authority to consider that point, which shows non-application of mind. 3. Learned counsel also pointed that the contraband alleged to have been seized from the petitioner in the grounds mentioned is stated to be produced in a paper wrapper (bghl;lsk;) whereas what has been placed before the Forensic Sciences Lab is a polythene bag. Therefore, there is no material to show the actual seizure of the contraband. 4. Lastly, the learned counsel appearing for the petitioner pointed out that, while considering bail application, the detaining authority has stated that in the ground case, the bail application has been filed and pending, however, he would conclude that the detenue may be released on bail and will be prejudicial to the maintenance of public order, which is without application of mind. 5. Per contra, learned Additional Public Prosecutor, would submit that no prejudice is caused to him due to non-supply of the remand order. He also contended that the same was not relied on by the detaining authority. The contention that the contraband was seized in a paper wrapper but it was placed in a polythene bag before the Forensic Science Lab, is a minor discrepancy, which would not affect the detenu's right. With regard to the third point, the learned additional Public Prosecutor would submit that, in similar cases, since courts have been granting bail, the detaining authority was satisfied that there is a real possibility of the detenu coming out on bail and there is an application of mind on the part of the detaining authority. Therefore, the learned Additional Public Prosecutor prays for dismissal of the petition. 6. We have carefully considered the submissions made and perused the records including the order under challenge. 7. As far as the non-supply of remand order is concerned, it is well settled that the detenu has got to be furnished of the relevant documents on which the detention order has been passed. In the absence of supply of copy of the remand order, the ultimate order passed by the detaining authority cannot be sustained. 8. Secondly, according to the prosecution, the contraband was recovered in a paper wrapper. Where as, according to the Forensic Science Lab, the contraband for analysis was received in a polythene cover. Therefore, it raises a suspicion whether it was the seized material sent to the Lab. Under the circumstances, the detaining authority, should have called for an explanation from the sponsoring authority but he did not do so. Under the circumstances, the order of detention is unsustainable. 9. As far as the third point is concerned, in Paragraph No.5 of the detention order, the detaining authority has stated as follows:- "5. I am aware that Raja is in remand in Palakkarai P.S. Cr.No.1565/2010. He has filed a bail application before https://hcservices.ecourts.gov.in/hcservices/ 3 the Special Court for E.C.Act cases, Pudukkottai in Cr.M.P.No.1493/ 2010 in this case and the same is pending. In the adverse cases in Palakkarai P.S.Cr.No.208/2007, Cr.No.370/2007, Cr.No.661/2009 and Cr.No.1101/2009, he filed bail applications and he was released on bail. From this, I draw the inference that he is very likely to be released on bail in this case. If he comes out on bail, he will indulge in future activities which will be prejudicial to the maintenance of public order and public health..." When the bail application filed was pending before the Court of law, the detaining authority cannot prejudge the decision of the Court. The observation made in the detention order that there is a real possibility of the detenu coming out on bail reveals the non-application of mind on the part of the detaining authority, which vitiates the proceedings. 10. Therefore, on consideration of the grounds taken by the learned counsel appearing for the petitioner, we are of the considered view that the order is vitiated, which is liable to be set aside. 11. Accordingly, the order of detention in C.P.O./T.C./I.S./D.O.No.70/2010 dated 15.11.2010 passed by the first respondent is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To 1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 6. 2. The Joint Secretary to Government Public (Law & Order) Fort St.George, Chennai – 9. 3. The Commissioner of Police, Trichirapalli City, Trichirapalli. 4. The Superintendent, Central Prison, Trichirapalli. 5. The Inspector of Police, Palakkarai Police Station, Trichirapalli. 6. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.T.A.Om Prakash, Advocate (SR.No.19013) H.C.P.(MD)No.2 of 2011 20.06.2011 asvm NSV/4.7.11/3P/8C https://hcservices.ecourts.gov.in/hcservices/