H.Suleka v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.NO.127 OF 2023 H.Suleka .. Petitioner Vs 1.The State Represented By its Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.
2.The Commissioner of Police / Detaining Authority Coimbatore City.
3.The Superintendent of Prison Coimbatore Central Prison Coimbatore.
4.The Inspector of Police D-1, Ramanathapuram Police Station, Coimbatore District.
.. Respondents 1/10
PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus to call for the records leading to the detention of the petitioner's son H.Mohammed Rasik, son of Hakkim, aged about 20 years under Act 14/1982 vide detention order dated 22.11.2022 on the file of the second respondent made in proceedings in C.No.74/G/IS/2022, quash the same, consequently direct the respondents herein to produce the body and person of H.Mohammed Rasik, son of Hakkim, aged about 20 years, who is lodged at Central Prison, Coimbatore, before this Court, set him at liberty.
For Petitioner :
Mr.C.D.Sugumar For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,] When the matter came up for admission on 30.01.2023, this Bench made an order and a scanned reproduction of the same is as follows: 2/10
3/10
4/10
2.The ground case which is the sole substratum of the impugned detention order is Crime No.477 of 2022 on the file of D-1 Ramanathapuram Police Station for alleged offences under Section 8(c) r/w 20(b)(ii)(C) and 25 of 'Narcotic Drugs and Psychotropic Substances Act, 1985' [hereinafter 'NDPS Act' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts. 3.Mr.C.D.Sugumar, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
4.Though in the admission board the petitioner campaign against the impugned preventive detention order was predicated on the point that there is a delay in considering the representation sent by the petitioner, in the final hearing learned counsel predicated his campaign against the impugned preventive detention order on the subjective satisfaction arrived at by the 5/10
Detaining Authority qua imminent possibility of detenu being enlarged on bail being flawed.
5.In support of his argument, learned counsel drew the attention of this Court to the grounds of impugned preventive detention order and submitted that aforementioned subjective satisfaction has been arrived at by the Detaining Authority by placing reliance on a bail order dated 20.09.2016 in the case of one one Raja @ Rajendran in 'Crl.M.P.No.902 of 2016 vide Crime No.129 of 2016 on the file of NIB CID, Coimbatore' (hereinafter 'Raja @ Rajendran case' for the sake of convenience and clarity) to arrive at above mentioned subjective satisfaction. Learned counsel submitted that 'Raja @ Rajendran case bail order as furnished to the detenu in the grounds booklet makes it clear that it is a case under Section 20(b)(ii)(B) (intermediate quantity) under NDPS Act whereas the ground case i.e., Crime No.
477 of 2022 on the file of D-1 Ramanathapuram Police Station is under Section 8(c) r/w 20(b)(ii)(C). Learned counsel further submits that therefore the ground case is a commercial quantity matter whereas Raja @ Rajendran case is intermediate quantity matter.
case of Raja @ Rajendran, the allegation pertains to 3 kg of Ganja whereas in the ground case it is a commercial quantity which is well above 20 kgs vide the Table to NDPS Act. To be noted all the provisions of law referred to pertain to NDPS Act.
6.Learned Prosecutor submits that the substance is the same and therefore the detaining authority has arrived at subjective satisfaction by placing reliance on Raja @ Rajendran case.
7.We carefully considered the rival submissions but we are unable to sustain the submission of the Prosecutor interalia owing to Section 37 (1)(b) of NDPS Act wherein there is a specific bar qua grant of bail with regard to commercial quantity. This means that comparing Raja @ Rajendran case which is intermediate quantity within the meaning of Section 20(b)(ii)(B) with the ground case which is a commercial quantity under Section 20(b)(ii)(C) is clearly a case of comparing apples and oranges. As the comparison is bad, the sequitur is, subjective satisfaction arrived at by the detaining authority qua imminent possibility of the detenu being enlarged on 7/10
bail is impaired. As the subjective satisfaction is impaired, further sequitur is, the impugned preventive detention order deserves to be dislodged. 8.Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 22.11.2022 bearing reference C.No.74/G/IS/2022 made by the second respondent is set aside and the detenu Thiru.H.Mohammed Rasik, aged 20 years, son of Thiru. Hakkim, is directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.) 20.06.2023 Index : Yes TK P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Coimbatore.
8/10
To 1.The State Represented By its Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.
2.The Commissioner of Police / Detaining Authority Coimbatore City.
3.The Superintendent of Prison Coimbatore Central Prison Coimbatore.
4.The Inspector of Police D-1, Ramanathapuram Police Station, Coimbatore District.
5.The Public Prosecutor High Court, Madras.
9/10
M.SUNDAR, J.
AND R.SAKTHIVEL , J.
TK H.C.P.NO.127 OF 2023 20.06.2023 10/10