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Judgment
P.R. Shivakumar, J.—This Habeas Corpus Petition has been filed against the order of detention passed by the first respondent in respect of
the detenu M. Buhari u/s 3(1)(i) of COFEPOSA Act, 1974. The said order of detention was passed on the subjective satisfaction of the first
respondent that clamping such an order became necessary for preventing the detenu from smuggling of goods in future. The said order of detention
under COFEPOSA Act, 1974 is challenged in this Habeas Corpus Petition by the detenu himself.
The facts leading to the filing of the present Habeas Corpus Petition, can be briefly, stated thus:
One Shahul Hameed holding Passport No. E1079207 dated 20.03.2002 was caught by the officers of the Directorate of Revenue Intelligence,
Coimbatore when they checked his baggage based on specific intelligence that he was attempting to smuggle huge quantity of Ketamine
Hydrochloride keeping the same concealed in his baggage. On being questioned, he revealed the involvement of the petitioner herein in the above
said smuggling of Ketamine Hydrochloride and the fact that the petitioner used the above said Shahul Hameed, a close relative of the petitioner for
the purpose of carrying the contraband. The samples drawn from the alleged contraband seized from the baggage of Shahul Hameed, on being
tested in the Forensic Science Department, Government of Tamil Nadu, Narcotics Division, Chennai, conformed to the definition of Ketamine
Hydrochloride. The detaining authority forming an opinion that Ketamine Hydrochloride was a restricted item for export and could be exported
only after obtaining a No Objection Certificate from the Narcotics Commissioner, Gwalior, India, chose to pass the impugned order of detention.
Though several grounds have been raised assailing the order of detention, the learned Counsel for the petitioner, mainly relies on the contention
that there was non-application of mind on the part of the detaining authority as to whether Ketamine or Ketamine Hydrochloride is covered by the
Notification No. 67(RE-2007)/2004-2009 dated 27.12.2007; that there is also non-application of mind on the part of the detaining authority
regarding the definition of contraband, which is evident from the fact that it has been defined as Ketamine at one place and as Ketamine
Hydrochloride at another place and that the detaining authority failed to consider that the restriction regarding export, as per the said notification,
was imposed only in respect of Ketamine and not in respect of Ketamine Hydrochloride.
We heard the submissions made by Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor representing the respondents 1 and 3
and Mr. C.V. Ramachandramurthy, learned central government standing Counsel representing the second respondent on the above said
submissions.
The first and foremost contention of the learned Counsel for the petitioner is that though the Directorate of Revenue Intelligence authorities might
have found out 10.5 Kgs of Ketamine Hydrochloride from the baggage of the alleged carrier Shahul Hameed, there is an ambiguity as to whether
the substance is Ketamine or Ketamine Hydrochloride and that there is utter confusion regarding the same, which is writ large in the grounds of
detention itself, wherein the alleged contraband is described as Ketamine at one place and as Ketamine Hydrochloride at another place. In
addition to such discrepancy in describing the contraband, there is also absence of consideration as to Whether Ketamine and Ketamine
Hydrochloride, are one and the same substance.
In this context, it is relevant to mention that we have already held in our order in H.C.P. Nos. 1303 and 1306 of 2009 dated 18.06.2010 that
pure Ketamine is available in powder form and Ketamine Hydrochloride, which is also in powder form, is an organic compound of Ketamine,
different from pure Ketamine. In view of the same and in the light of the view expressed by the earlier division benches of this Court in (1) N.K.
Jawahar Ali and Ors. v. The State of Tamil Nadu, rep. by its Secretary, Public (SC) Department, Fort St. George, Chennai � 600009 and Ors.
reported in 2009 (2) L.W.(Cri.) 1285, and (2) Esakkimuthu v. State represented by Commissioner of Police, Office of the Commissioner of
Police, Kokkirakulam, Tirunelveli City and Anr. reported in (2009) 3 MLJ (Cri) 1, the failure on the part of the detaining authority to consider
whether Ketamine and Ketamine Hydrochloride are one and the same substance would amount to non-application of mind and the same would
vitiate the order of detention.
The learned Counsel for the petitioner also drew our attention to the Notification No. 67(RE-2007)/2004-2009 dated 27.12.2007 under which
restriction has been imposed only regarding Ketamine and not on export of Ketamine Hydrochloride. The attention of this Court was also drawn
to the report of Forensic Sciences Department, Government of Tamil Nadu, Narcotics Division, Chennai-4, a copy of which is available in page
183 of the paper book. In the said report, a finding was recorded to the effect that the samples drawn from the alleged contraband seized from
Shahul Hameed was Ketamine Hydrochloride. At the bottom of the report, the following notes are found.
Ketamine Hcl is the hydrochloride salt of ketamine
Ketamine Hcl is not covered under NDPS Act of 1985
Ketamine Hcl is an animal anaesthetic and is occasionally used as Human anaesthetic also
Ketamine is a Psychedelic substance similar to phencyclidine (PCP)
From the said report and the explanatory note 1 and 2, it is quite obvious that Ketamine Hydrochloride is different from Ketamine. It is also
obvious that Ketamine Hydrochloride is not covered under the NDPS Act, 1985. A reading of the said notice in conjunction with the notification
referred to supra, will make it obvious that for exporting Ketamine alone, a ''No Objection Certificate'' from the Narcotics Commissioner is
needed and for exporting Ketamine Hydrochloride, no such ''No Objection Certificate'' is needed. Therefore, we are convinced with the tenability
of the contention raised on behalf of the petitioner that the observation of the detaining authority that the petitioner/detenu was indulging in
smuggling of Ketamine through carriers much against the above said notification, shows non-application of mind.
The detaining authority has also committed an error in interpretting the said notification by stating that for exporting Ketamine Hydrochlorid, a
''No Objection Certificate'' from the Narcotic Commissioner is needed. The notification prohibits export of Ketamine without a ''No Objection
Certificate'' from the Narcotics Commissioner, and no such requirement is found in the said notification cited by the detaining authority in respect of
Ketamine Hydrochloride. The discrepancy regarding the description of the contraband found in the detention order itself, namely describing it at
one place as Ketamine and describing it at another place as Ketamine Hydrochloride, also shows non-application of mind on the part of the
detaining authority. We are convinced that the order of detention imposed in this petition is vitiated for the above said reasons. Accordingly, we are
inclined to set aside the order of detention.
In the result, the Habeas Corpus Petition is allowed and the impugned order of detention, dated 23.09.2009 is set aside. The detenu M.
Buhari, son of Mohammed Hussain is ordered to be set at liberty forthwith, unless his continued custody is required in connection with any other
case.