Baiju Kumar Mahto v. The State Of Tamil Nadu Rep By,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Baiju Kumar Mahto .. Petitioner Vs 1.State of Tamil Nadu rep. By The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
2.The Commissioner of Police/Detaining Authority, Coimbatore City, Coimbatore.
3.The Superintendent of Prison, Central Prison, Coimbatore.
4.The Inspector of Police, E2 Peelamedu Police Station, Coimbatore City.
.. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records pertaining to the order of detention passed by the second respondent vide his proceedings in C.No.64/G/IS/2022 dated 17.10.2022 against the petitioner's son the detenu Ganga prasad, aged 28 years, son of Page Nos.1/10
Baiju Kumar Mahto, now confined in Central Prison, Coimbatore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner :
Mr.T.Balaji for Mr.T.Muruganantham For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by father of the detenu assailing a 'preventive detention order dated 17.10.2022 bearing reference C.No.64/G/IS/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
2. Impugned detention order has been made under 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic Page Nos.2/10
offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Drug Offender' within the meaning of Section 2(e) of Act 14 of 1982.
3. The ground case which is the sole substratum of the impugned detention order is Crime No.863 of 2022 on the file of E-2 Peelamedu 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.
4. Mr.T.Balaji, learned counsel representing Mr.T.Muruganantham, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor assisted by Mr.M.Sylvester John, learned counsel, for all respondents are before us.
5. In the captioned HCP, very many grounds have been urged in Page Nos.3/10
the support affidavit but learned counsel for petitioner projected his argument or in other words predicated his campaign against the impugned preventive detention order on one point and that one point turns on subjective satisfaction of the detaining authority being impaired qua imminent possibility of the detenu being enlarged on bail.
6. Elaborating on this argument, learned counsel drew our attention to paragraph 6 of the impugned preventive detention order and the most relevant portion reads as follows: '6.......Further in a case registered under similar sections of law (Coimbatore NIB CID Crime No.129/2016 u/s 8(c) r/w 20(b)(ii)(B) and 25 of NDPS Act 1985), bail was granted to the accused Raja @ Rajendran by the Hon'ble Additional District Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore in C.M.P. No.902/2016 dated 20.09.2016....'
7.
We had the benefit of perusing the bail order of the Trial Court in Crime No.129 of 2016 wherein the bail petitioner is one Raja @ Rajendran. This order is at page 130 of the booklet and a scanned reproduction of the same is as follows:
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8. We also had the benefit of perusing the bail application in Raja @ Rajendran case which is at page 128 and a scanned reproduction of the same is as follows:
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9. Adverting to the aforementioned bail order and bail petition, learned counsel submitted that the alleged offence in Raja @ Rajendran case is under Section 8(c) r/w 20(b)(ii)(B) whereas the ground case i.e., Crime No.863 of 2022 on the file of E2 Peelamedu Police Station, Coimbatore City is under Section 8(c) r/w 20(b)(ii)(C). Learned counsel submits that therefore the ground case is a commercial quantity matter whereas Raja @ Rajendran case is intermediate quantity matter. We also find from the bail petition that in the 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.
10.
Learned Additional Public 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.
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11.
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 bail is impaired. As the subjective satisfaction is impaired, further sequitur is, the impugned preventive detention order deserves to be dislodged.
12. Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 17.10.2022 bearing reference C.No.64/G/IS/2022 made by the second respondent is set aside and the detenu Thiru.B.Ganga Prasad, aged 28 years, son of Thiru.Baiju Kumar Mahto, is directed to be set at liberty forthwith, if not required Page Nos.8/10
in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.) 02.06.2023 Index : Yes mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Coimbatore.
To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
2.The Commissioner of Police/Detaining Authority, Coimbatore City, Coimbatore.
3.The Superintendent of Prison, Central Prison, Coimbatore.
4.The Inspector of Police, E2 Peelamedu Police Station, Coimbatore City.
5.The Public Prosecutor High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL , J., mmi 02.06.2023 Page Nos.10/10