A.S. Ponraj vs Government of India and another

Arunachalam, J.—Petitioner himself is the detenu. He has pleaded for issue of a habeas, for his production before this Court to be set free, after quashing the impugned order of detention dated. 26.2.1993 passed against him by the first Respondent, in exercise of the powers conferred by Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, with a view to preventing him from engaging in conspiring in the transportation and storage of narcotic drugs.

Facts which led to the passing of the impugned order, will have to be briefly stated: On the basis of intelligence information, that the Petitioner had deposited about 3 kgs of heroin belonging to him, at the residence of one Sundararajulu, the said premises bearing Door No. 126 Alwar Thirunagar Annexe, Madras-87 was searched on the night of 17/18.12.1992 by the Officers of Narcotic Control Bureau. Rajamannar, brother-in-law of the detenu informed the officials before they commenced the search, that the detenu had given a black colour Echolac brief case containing narcotic drugs to him, for safe keeping and that he had kept this brief case in the kitchen loft and he was willing to produce the same. The brief case had a number lock. The combination of numbers to open the brief case was provided by Rajamannar. The gross weight of several packets of heroin found in the brief case was 3.010 kgs. After follow up action, officers proceeded to door No. l Anna Main Road, Directors Colony Kodambakkam, Madras-24, which is the office premises of the detenu. Apart from Indian Currency and US Dollars, in the third drawer of the table two small packets (brown colour) were noticed which on examination, was found to be heroin, each packet approximately weight in 5 gms. Usual arrest and production before the concerned Magistrate for remand followed. Thereafter, the impugned order of detention was passed.

Mr. N. Natarajan, learned senior counsel, though has urged several grounds to invalidate the impugned order of detention, it will suffice if we refer to one single contention, which enures in favour of the detenu. Petitioner''s counsel contended, that though 22 packets, each approximately weighing 5 gms. were taken as samples from the heroin seized at the first premises, only 11 such samples were forwarded to the Laboratory for chemical analysis. Those 11 samples, according to seizure mahazar, contained approximately 5 grams heroin each. However, the Chemical Analyst has received 11 packets, weighing 9.67, 9.84, 7.09, 6.16, 6.75, 6.59, 6.94, 10.27, 11.82, 8.08 and 5.78 grams respectively. The contention was, that there is no correlation between seizure and the samples sent for analysis. In other words, it was argued that there was total non-application of mind to this vital difference, in weight.

Mr. K. Asokan, Additional Central Government Standing Counsel, contended that the weight of the samples sent for analysis was only approximate, while in the Laboratory, by using sophisticated scientific instrument, correct weights were recorded.

In a case of preventive detention, application of mind by the detaining authority, to every facet of the facts placed before him will be essential. The authorities, who are in-charge of enforcing provisions of the Narcotic Drugs and Psychotropic Substances Act, must be equipped with scientific instruments, when they choose to investigate and seize drugs, which pose grave danger to the society Officers, who are bound to be experienced, cannot make a mistake, so glaring when they note down in the mahazars, that approximately 5 grams sample was taken, while in the Laboratory it was found to be almost double. We can visualise, a slight difference in weight, if an approximate unweighted sample is forwarded to the Laboratory wherein the sample is critically weighed using a monitored balance. However, the difference can only be approximate and cannot be so violent as 1-1/2 or 2 times more in weight than the sample allegedly taken. In any event, the detaining authority must have applied his mind to correlate the violent difference between the weight to samples seized and forwarded and the sample received by the Laboratory. As long as that has not been done, it is apparent that there has been total non-application of mind. In the report of the Analyst, atleast in respect of five samples, the difference in weight is so great that it should not have escaped the attention of the Detaining Authority. It is fairly conceded by the Respondent''s counsel, that the grounds of detention does not indicate application of mind, to this vital factor by the Detaining Authority.

We are satisfied that the detenu is bound to succeed on this single ground, due to non-application of mind by the Detaining authority. The impugned order or detention is set aside and the detenu is directed to be set at liberty forthwith unless his detention is otherwise required. This Habeas Corpus Petition is allowed.