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Judgment
R. Jayasimha Babu, J.—The detention under challenge is that of one F. Saverior @ Savaridoss, who was detained under the detention
order dated 29.8.2001 made by the District Collector and District Magistrate, Dindigul on the ground that the said F. Saverior @ Savaridoss was
a drug offender. In the order, four adverse cases against him were referred to, all of which relate to possession of ganja. The ground case also
relates to possession of ganja, and refers to his being caught by the police on 7.7.2001 when he was in possession of two kgs. of ganja in a
polythene bag.
After referring to the ground case as also the adverse cases, the District Magistrate inferred at paragraph 4 thus:
From the above said materials, I am satisfied that Thiru F. Saverior @ Savaridoss is habitually committing offence by possessing Ganja and
thereby acted in a manner prejudicial to the maintenance of public order and public health and as such he is a ""Drug Offender"" as contemplated u/s
2(a) of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders
and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982). From the records placed before me, I am satisfied that Thiru F. Saverior @
Savaridoss caused widespread danger to health and thereby acted in a manner prejudicial to the maintenance of public order and public health.
The Collector has thus held that possession of ganja by itself was an act which was prejudicial to the maintenance of public order and public
health. He has also recorded his satisfaction that F. Saverior @ Savaridoss caused widespread danger to health and thereby acted in a manner
prejudicial to the maintenance of public order and public health. That inference again is based solely on the fact that F. Saverior @ Savaridoss was
found in possession of two Kgs. of ganja.
It is difficult to accept the reasoning of the detaining authority that mere possession of ganja by itself would be a act which is prejudicial to the
maintenance of public order and public health, and that, such possession has caused widespread danger to health. The term ""public order"" has
been statutorily dealt with in the same State Act 14 of 1982. The Explanation u/s 2(a) - 2(a) deals with acts which are prejudicial to the
maintenance of public order in it''s five sub clauses - reads thus
(a) public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, INTER ALIA, if any of the
activities of any of the persons referred to in this clause (a) directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a
feeling or insecurity among the general public or any section thereof or a grave or widespread danger to life or public health or ecological system.
The activities of the drug offender which could be regarded as being prejudicial to the maintenance of public order as set out in Section 2(a)(ii)
are: when he is engaged, or in making preparations for engaging, in any of his activities as a drug-offender, which affect adversely, or are likely to
affect adversely, the maintenance of public order.
The very definition contained in Section 2(a)(ii) of the Act, as also the Explanation u/s 2(a) clearly show that mere engaging in or making
preparations for engaging in for being a drug offender by itself could not prejudicially affect public order. It is only when such engagement or
preparation adversely affects or is likely to adversely affect the maintenance of public order, that the Act becomes applicable.
In this case, all that the detention order discloses in relation to the activities of the detenu is that he was in possession of the ganja which is a
substance which is covered by the Narcotic Drugs and Psychotropic Substances Act, 1985, and possession of which contrary to the terms of that
statute is a violation of the law. While the detenu may have violated that Act by possessing ganja, the possession by itself would not amount to an
activity which is prejudicial to the public order, unless something more than possession is shown to have been indulged in by the detenu which has
affected the public order.
The concept of ""public order"" has been dealt with in numerous decisions of the Apex Court. The Constitution Bench in the case of The
Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia, observed thus:
The foregoing discussion yields the following results:
(1) ""Public Order"" is synonymous with public safety and tranquility: it is the absence of disorder involving breaches of local significance in
contradistinction to national upheavals, such as revolution, civil strife, war affecting the security of the State..........
The Explanation below to Section 2(a) of Act 14 of 1982 deems ""public order"" to have been affected adversely, inter alia, when there is grave
or widespread danger to public life by reason of the activities of the persons referred to in Clause (a) which in Sub Clause (ii) includes a drug
offender. As the order of detention does not disclose that the detenu had done anything apart from possessing the two Kgs. of ganja, there is no
material on the basis of which the detaining authority could have drawn the inference that there was widespread danger to life, or public health by
reason of the activities of the detenu.
Learned Public Prosecutor, however, submitted that possession by itself should be sufficient to warrant inference of likely danger to life and
public health and in this context, relied upon a decision of the Bench of the Gujarat High Court in the case of Bhikhabhai Thakerbhai Patel Vs.
Commissioner of Police and Others, , wherein, the Court, while dealing with a bootlegger, observed that, inasmuch as consumption of country
liquor would certainly cause widespread danger to the public health, there was enough material for the detaining authority to hold that the activities
of the petitioner would be prejudicial to the maintenance of public order. So far as Tamil Nadu Act 14 of 1982 is concerned, this Court has
consistently held that mere possession of illicit liquor by itself would not amount to an act prejudicial to the maintenance of public order so as to
permit preventive detention of persons in possession of illicit arrack. It is only in cases where such arrack is mixed with poisonous substances that
possession of such liquor for purpose of sale is regarded as constituting danger to life and public health and persons indulging in such acts and who
fall within the definition of ""bootlegger"" in Section 2(b) of the Act, are regarded as persons who may be preventively detained.
While possession of ganja is in contravention of the law is an offence for which the person possessing ganja can be punished, such possession
by itself would not amount to an act prejudicial to the maintenance of public order, so as to attract the provisions of Act 14 of 1982 so as to permit
the preventive detention of such persons under that enactment.
Moreover, there is a special legislation with regard to persons who indulge in illicit traffic in Narcotic Drugs and Psychotropic Substances
namely, Prevention of Illicit Traffic in Narcotic Drugs and Psychotrophic Substances Act, Central Act 46 of 1988. As set out in the preamble to
that Act, that Act was enacted, inter alia, on account of illicit traffic in narcotic drugs and Psychotropic Substances Act posing a serious threat to
the health and welfare of the people and the activities of persons engaged in such illicit traffic have a deleterious effect on the national economy.
""Illicit Traffic"" is defined in that Act in Section 2(e) in very wide terms and covers persons engaged in cultivation or in production, manufacture,
possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India,
export from India or transshipment, of narcotic drugs or psychotropic substances, as also persons dealing in any activities in narcotic drugs or
psychotropic substances, or handling or letting any premises for the carrying on of any of the activities and also includes persons directly or
indirectly financing such activities, abetting or conspiring in the furtherance of or in support of doing any such activities and harboring persons
engaged in such activities.
Section 3 of that Act provides for orders being made for detention of such persons. One of the authorities empowered to make an order under
that Section is the State Government or any Officer of a State Government not below the rank of the Secretary to the Government specially
empowered for the purposes of this Section by that Government. The order of detention can be made, if the said Officer is satisfied with respect to
any person that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary to make
an order of detention. The maximum period of detention under that enactment, as provided in Section 11, is one year in respect of certain classes
of persons, and two years in respect of persons to whom the provisions of Section 10 of the Act apply.
The State Government, therefore, thus is not powerless to deal with persons who are in possession of narcotic drugs and psychotropic
substances and preventively detain them, but that can be done by invoking the proper law viz., Central Act 46 of 1988.
Though we heard elaborate arguments on the question as to whether the Central Act 46 of 1988 is a law in respect of the same subject matter
in part or in whole as the Tamil Nadu Act 14 of 1982, it is not necessary to decide that question in this case, as even by the very terms of Act 14
of 1982, the impugned order of detention cannot be sustained, even assuming that that State statute has been properly invoked.
We may notice here that the relevant entries in Schedule VII to the Constitution dealing with preventive detention: Entry 9 in List I and Entry 3
in List 2. The National Security Act 65 of 1980 has been enacted providing for preventive detention in respect of matters covered by both these
entries. The State Act 14 of 1982 which was subsequently enacted, has received the Presidential assent and Section 16 thereof specifically
provided that detention orders shall be made only under the State Act and not under the National Security Act, in all cases where the order of
detention may be or can be made against such person under the State Act. The Narcotic Drugs and Psychotropic Substances Act was
subsequently enacted by Parliament in the year 1988, and if it were to be regarded as a law enacted with respect to the same subject matter in so
far as drug offenders are concerned, then to that extent, the questions of repugnancy between the two Acts may require examination.
In this case, as we have found that the detaining authority has not applied his mind while holding that the detenu had committed acts which
were prejudicial to the maintenance of public order, the detention order cannot be sustained and is set aside.
The habeas corpus petition is allowed. The detenu shall be released forthwith, unless his custody is required in any other case.