@JUDGMENTTAG-ORDER
Elipe Dharmarao, J.@mdashIn all these Habeas Corpus Petitions, the detention orders slapped on the detenus, branding them as ''drug offenders'', as contemplated u/s 2(e) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), are being challenged by their kith and kin on relatively similar grounds. Since being inextricably interconnected with each other, all these matters are heard together and are being disposed of by this common order.
2. On the allegation that in the money-spinning health sector, these detenus and others, collected the expired drugs from various pharma companies and recycled them as valid drugs, by altering the batch number and expiry dates and pushed them back into the pharmaceutical retail market, based on a complaint lodged by the Drug Inspector, Drug Control Department, a case in Crime No. 132/2010 came to be registered against the detenus and others by the Inspector of Police, Crime, P-6 Kodungaiyur Police Station, Chennai for the offences u/s 420, 468 and 465 IPC. The FIR came to be altered subsequently, inserting Section 328 IPC read with Sections 33(eea), 17(B) and the 27 of the Drugs and Cosmetics Act, 1940.
3. It is also alleged that the accused joining together are collecting the expired drugs from the medical shops and by pouring spray over the seal affixed in the expired medicine and erasing the same with a cloth and by putting a fresh seal over the erased portion as if the drug is in live and re-distributing the expired drugs to the medical shops for sale show that they have no regard for human life and it is a very heinous crime committed against the society at large.
4. During the course of investigation, not only the detenus, but other accused were also arrested leading to seizure of spurious drugs in large quantities and since the act alleged to be committed on the part of the accused persons is offending the public health and order, since they acted in a manner prejudicial to the maintenance of public health and order and further to prevent them from indulging in such further activities in future, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14/82, the impugned orders of detention were slapped on the detenus by the Respondents, which are under challenge in these petitions before us.
5. Heard the learned Counsel appearing for all the parties.
6. Before embarking upon the pleas and counter pleas of respective parties, we wish to place on record the fact that during the course of hearing of these matters on 13.12.2010, Mr. N. Jothi, the learned Counsel appearing for the Petitioner in H.C.P. No. 1807 of 2010 has informed us that his client has given a letter to the Registry requesting to de-link the said HCP from this batch of petitions and to post it before a different Division Bench. Pursuant thereto, when this Court is about to pass orders to post all these matters before another Division Bench so as to have common hearing, all other learned senior counsel appearing for the detenus, in one voice, have requested this Court to proceed with the hearing of these matters and if need be, the matter wherein Mr. N. Jothi is appearing may alone be posted before another Division Bench. While so, de horse the letter of his client, Mr. N. Jothi has expressed his willingness to go on with his arguments before us, further saying that he will withdraw the said letter of his client. Thereupon, the said HCP. No. 1807 of 2010 has also been taken up along
7. During arguments, the learned Counsel appearing for respective parties have raised various points, which we will deal with in order and one after the other, in seriatim. Arguments regarding non-mentioning of the amended provision of law in the detention order:
8. The learned Counsel appearing for the detenus would argue that though the detention orders, all dated 8.4.2010 came to be slapped on all the detenus branding them as ''drug offenders'', no offence under the Drugs Act had been quoted in the orders of detention, which would clearly show the non-application of mind on the part of the detaining authority. They would further argue that the FIR originally registered only under IPC offences on 16.3.2010, later came to be altered on 27.3.2010, thereby including the offences under the Drugs Act also, but, in spite of the said fact, in the detention orders passed on 8.4.2010, there was no whisper about the alteration of Sections of law, including the offences under the Drugs Act, which shows that the altered FIR was not placed before the Detaining Authority and it shows clear non-application of mind on the part of the Detaining Authority, which would vitiate the orders of detention passed against the detenus. In support of their arguments, they have placed reliance on a Division Bench judgment of this Court in Moun Mary v. The District Collector Thoothukudi 2007 1 L.W. 132. In the said case, pending consideration of the first detention order passed on 19.6.2006, an amended detention order was passed on 26.6.2006. But, the amended detention order was not placed before the Government while confirming the order of detention. In those circumstances, a Division Bench of this Court has held:
Whenever an order is passed by the detaining authority like this, time stipulation will be available for making the representation, and the detenu must be put on notice that he is having 12 days time, within which he could make the representation, i he so desires. In the instant case, it is available in the order dated 19.6.2006, but not in the amended order. Thus, it was not made known to the detenu that after amending the order, he is also having sufficient time to make his representation. Thus, the order lacks legality in all respects.
Holding so, the detention order was set aside in that case. Citing the said judgment, the learned Counsel appearing for the detenus would argue that applying the said ratio to the cases on hand, the detention orders are liable only to be quashed.
9. In reply, Mr. P.S. Raman, the learned Advocate General has argued that the amended FI Rs. were part and parcel of the materials made available before the Detaining Authority and in support of his arguments, he has taken us through the booklets and also produced before us the original records pertaining to all these matters.
10. On factual verification of the original records and having gone through the paper books supplied to the detenus, we are able to see that the orders of detention dated 8.4.2010 were served on all the detenus on 9.4.2010 in the Central Prison, Puzhal, Chennai and the grounds of detention were served on 13.4.2010. The detention orders need to be approved by the Government within twelve days, lest they shall not remain in force, as per the scheme of the Act. At this juncture, an argument has been advanced on the part of the detenus that the statutorily required approval has not been accorded by the Government within the stipulated period of twelve days and hence, even on this score, the impugned orders are liable to be set aside.
11. As has been noted by us supra, the original file has been placed before us by the learned Advocate General. On a perusal of the same, we are able to see that the detention orders were forwarded to the Government on 15.4.2010 from the Home Secretary and it is pursuant thereto that on 16.4.2010, the Government has sought for clarification from the Detaining Authority, resulting in issuance of amended detention orders by the detaining authority on 16.4.2010, followed by the approval of the detention orders by the Honourable Minister on 19.4.2010, which is well within the statutory period of 12 days from the date of passing of the detention order. Therefore, this argument advanced on the part of the detenus falls to the ground.
12. With respect to the argument that the detaining authority has failed to apply his mind to the fact of non-mentioning of the altered sections of law in the original detention order, on a perusal of the voluminous booklets supplied to the detenus, we are able to see that the requests filed by the Investigating Officer before the concerned court, praying to alter the sections of law forms part of the booklets, and as a test case we have taken the booklet filed in HCP. No. 1171 of 2010 (relating to the detenu Rajesh Mehta), which contains the request filed by the Investigating Officer before the learned XIII M.M., Egmore,Chennai, praying to alter the sections of law, at Page No. 260. Even with respect to the other detenus, on a thorough perusal of the booklets supplied to the detenus, we are able to see such requests filed by the Investigating Officer before the Court. Further more, almost all the detenus have filed surrender application/anticipatory bail petitions/bail petitions before the Courts concerned, mentioning therein the amended sections of law. As a test case for this aspect, we have perused the booklet supplied to the detenu Mr. Sekar (concerned with HCP. No. 778 of 2010) and at page No. 625 of this booklet supplied to the detenu, we are able to see the order passed by the learned VIII Metropolitan Magistrate, G.T., Chennai, accepting the surrender of the accused on 26.3.2010. In his surrender petition also, the accused himself has quoted the altered sections of law. Therefore, all these factual aspects would clearly establish the fact that the detenus are very well aware of the alteration of the Sections of law and all the relevant materials have been placed before the detaining authority, who on arriving at the subjective satisfaction, has passed the orders of detention. But, by mistake or oversight, these newly inducted sections of law have not been reflected in the orders of detention, which was subsequently rectified by the detaining authority, on being pointed out by the Government, leading to issuance of an erratum.
13. At this juncture, Mr. N. Jothi, the learned Counsel appearing for the Petitioner in H.C.P. No. 1807 of 2010 would argue that under the scheme of the Act, different duties and responsibilities have been cast on the Sponsoring Authority, the Detaining Authority and the Government and since in the case on hand, the Government has prompted the Detaining Authority to issue an erratum, the impugned orders of detention are non-est in law and therefore, need to be set aside, by awarding compensation to the detenus for being illegally detained by the Respondents.
14. Though this argument advanced on the part of the learned Counsel appears to be attractive, we are not able to appreciate the same since we have to bear in mind the ultimate outcome. Had not the Government sought for clarification from the Detaining Authority about the amendment of the FIR, the argument that would have been advanced on the part of the detenus would be the other way round, that the Government, while approving the order of detention, has not applied its mind.
15. In the case on hand, since the Government having gone through the voluminous material available on record was able to find the omission committed by the Detaining Authority, it has required the Detaining Authority to cure the defect, which shows its complete application of mind to the facts, circumstances and the materials made available before it by the Detaining Authority. Therefore, since the ultimate outcome is in total conformity with the procedures established under law, besides glaringly proving the application of mind of the Government to the cases on hand, this argument advanced on the part of the detenus cannot be appreciated. Further no prejudice whatsoever has been committed to the detenus by such omission of mentioning the amended sections of law in the detention orders by the detaining authority in the original orders of detention, since, as has been pointed out by us supra, it is well within the knowledge of the detenus, who have even filed surrender applications/anticipatory bail petitions/bail petitions quoting the amended sections of law.
16. We are able to see from the original records and the paper books that the amended FIR was also a part of the paper book and the original record placed before the Detaining Authority and also the Government. In fact, it is not in dispute that all the detenus have filed their surrender applications/anticipatory bail petitions/bail applications before the concerned Courts, mentioning the amended sections of law, which clearly shows that they are having complete knowledge about the alteration of the FIR. Therefore, the fact which is well within the knowledge of the detenus and all others, has mistakenly been omitted by the Detaining Authority in the detention order, which, in our considered opinion, will not at all vitiate the detention orders.
17. In the judgment of the Division Bench of this Court relied on by the learned Counsel for the detenus, the amended provision of law was not made known to the Government and in fact, it seems to be out of the knowledge of the detenu also. Only in those circumstances, the Division Bench has quashed the order of detention passed therein. But, in the cases on hand, as has been discussed at length supra, the material placed before the Government clearly speak to the factum of amendment of sections of law and the knowledge of the same by the detenus themselves. The Government, having considered the said amended sections of law has directed the detaining authority to issue an erratum, which was promptly complied with by the detaining authority. Therefore, the ratio lid down by the Division Bench of this Court in the said judgment has no application to the facts of the case on hand. Hence, these arguments advanced on the part of the detenus merit no consideration and accordingly, they are rejected. Arguments regarding Delay in producing the accused before the Court and the arrest of the detenus not intimated to the relatives:
18. On the part of the detenus, it has been argued that the detenus were not produced before the Magistrate within twenty four hours of their arrest, and thus violated the mandatory requirement of Section 57 of the Code of Criminal Procedure. The other argument advanced on the part of the detenus is that the arrest of the detenus was not intimated to the relatives, as has been mandated by the Honourable Apex Court in
19. Both these arguments have been countenanced by the learned Advocate General by arguing that while counting the twenty our hours, the journey time from the place of arrest to that of the Magistrate''s Court should be deleted and seeing from this perspective, there is no delay of whatsoever in producing the detenus before the Magistrate. He has also placed before us the copies of acknowledgements received from the kith and kin of the detenus, showing that the arrest of the detenus was properly intimated to them, and where there is no inmate in the address, intimation was given by affixure, thus complying with this mandatory requirement. By placing such material before us, the learned Advocate General would contend that both these arguments advanced on the part of the detenus have no legs to stand before this Court and would seek to reject the same.
20. No doubt, Section 57 of the Code of Criminal Procedure has mandated that no person shall be detained in custody without warrant for a longer period by a Police Officer, for a period more than twenty four hours. But, even in this Section 57 of the Code of Criminal Procedure, it has been mentioned that the time necessary for the journey from the place of arrest to the Magistrate''s Court could be excluded, as could be seen from the wordings of Section 57 of the Code of Criminal Procedure, which is extracted hereunder for easy reference:
57. person arrested not to be detained more than twenty-four hours - No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate u/s 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate''s Court.
21. Even according to the learned Counsel appearing for the detenus in all these cases, the delay in producing the accused person before the Magistrate, beyond the limit of twenty four hours, is very marginal, in the sense one hour and slightly above that. Taking into consideration the fact that the Magistrate has not recorded any delay regarding the production of the accused and also the legal position that the journey time to be excluded from the perspective of calculating 24 hours time, we do not find any illegality, to the effect of vitiating the detention order.
22. Further, the learned Advocate General has argued that if it is the case of the detenus that the guidelines of the Honourable Apex Court laid down in D.K. Basu''s case are not followed, they have to rake up the said issue in a different proceeding and before a different forum and not before this Forum, which is dealing with the question of validity of a detention order. In support of his arguments, he has placed reliance on a judgment of the Division Bench of this Court in Vadivel v. The State of Tamil Nadu 2000 1 L.W. 443, wherein it has been held:
The question whether the remand properly effected and in accordance with law is a matter to be agitated in a different proceeding and before a different Forum. If really there was any failure to comply with the provisions of law with regard to remand of an accused, it is always open to the accused to question the same by initiating suitable proceedings.
23. In view of the above judgment and further in view of the factual matrix of the case, as has been discussed supra, we are not able to appreciate these arguments advanced on the part of the detenus.
Arguments regarding pending bail applications:
24. The learned Counsel appearing for the detenus would argue that in the grounds of detention, the detaining authority has stated that there is real possibility of the detenue coming out on bail, by filing bail application, and this uncertainty vitiates the orders of detention.
25. There is no doubt that in most of the cases before us, either anticipatory bail petitions or bail petitions after arrest/surrender have been filed and the detaining authority has noted in all the detention orders about the real possibility of the detenus coming out on bail. The point that is to be considered is ''whether this action of the detaining authority could be called as his non-application of mind''.
26. In Ibrahim Nazeer v. State of T.N. and Anr. (2006) 3 SCC 17, while dealing with a similar situation, the Honourable Apex Court has held as follows:
It has to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail.
27. Full Bench of this Court, speaking through His Lordship The Honourable Mr. Justice P. Sathasivam (as His Lordship then was), in K. Thirupathi v. District Magistrate and District Collector Tiruchirapalli District at Tiruchirapalli and Anr. 2005 2 L.W. 946, has held as follows:
There must be cogent material before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be the ipse dixit of the Authority passing the detention order.
It is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of a case. That is why there is no provision in the Act in that regard and the matter is left to the discretion of the Detaining Authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose for which the order is passed.
In view of the above, we hold that strict insistence of the usage of the word "imminent" is not necessary and the other convincing expressions like "real possibility", "very likely" or "most likely" can be used by the detaining authority to reflect its satisfaction with regard to immediate release of the detenu on bail.
28. In all these matters, the impugned orders of detention were slapped on the detenus, while they were in custody. It is also not in dispute that in many cases bail petitions were also moved by the detenus before the concerned courts. In such circumstances, the question whether prayer for bail of the accused/detenus would be accepted by the courts concerned depends on the circumstances of each case and no hard-and-fast rule can be applied. In the terms of the above judgments, the only requirement that the detaining authority should be aware is that the detenu is already in custody and is likely to be released on bail. Therefore, the observation of the detaining authority that there is real possibility of the detenus being released on bail cannot be found fault with since on the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenus being released on bail.
29. The above judgments of the Full Bench of this Court and the Honourable Apex Court aptly apply to the cases on hand. Therefore, we need not have to traverse too much again regarding this aspect urged on the part of the detenus. Thus, following the ratio laid down in the above judgments, this argument advanced on the part of the detenus is rejected.
Arguments regarding definition Section 2 of the Act 14/82:
30. It has been argued on the part of the detenus that in the detention orders, it has been mentioned that the detenus were detained, with a view to preventing them from acting in any manner prejudicial to the maintenance of public and health and order. It has been their argument that the term ''public health'' has not at all been defined in Section 2 of the Act 14/1982 and therefore, the usage of term ''public health'' in the detention order by the detaining authority shows his complete non-application of mind and prayed to quash the detention orders on this ground.
31. Though Section 2(a) of the Act 14/1982 deals with the definition for the sentence ''acting in any manner prejudicial to the maintenance of public order'' regarding different types of offenders i.e. bootlegger, drug-offender etc. with no term included therein as ''public health'', the explanation appended to this section clears the doubts in this regard. For easy reference we shall extract hereunder the said explanation, which reads as follows:
Explanation - For the purpose of this Clause (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 of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health or ecological system.
(emphasis supplied)
32. Further, the term ''drug-offender'' has been defined u/s 2(e) of the Act 14/1982 as:
a person, who manufactures, stocks, imports, exports, sells or distributes any drug or cultivates any plant or does any other thing in contravention of any of the provisions of the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) and the rules, notification and orders made under either Act, or in contravention of any other law for the time being in force, or who knowingly expends or applies any money in furtherance or support of the doing of any of the above mentioned things by or through any other person, or who abets in any other manner the doing of any such thing.
33. No doubt, all the detenus in these cases are alleged to be either stockists or sellers of the drugs or the persons working for gain with either such stockists or sellers. Since the act of the detenus in pushing back the expired drugs into the market, by changing the expiry dates and making them appear as if they are genuine and live, squarely brings them within the meaning of the ''drug offenders'' and further since the explanation appended to Section 2 of the Act 14/1982 has also embraced the word ''public health'', this argument advanced on the part of the detenus cannot be entertained and accordingly, it is rejected.
Arguments regarding delay in depositing the contraband before the court and the detaining authority not awaiting the analysis report:
34. Mr. Abudukumar Rajarathinam, the learned Counsel appearing for the detenus concerning H.C.P. Nos. 805, 808 and 809 of 2010 would argue that though the contraband was seized on 20.3.2010, the same was deposited before the Court on 9.4.2010 i.e. with much delay after their seizure and this fact has not been considered by the detaining authority and therefore, the impugned detention orders are liable to be set aside.
35. But, on a perusal of the booklets furnished to the detenus, we are able to see that in some cases, the complainant has filed necessary petitions before the Court concerned for safe custody of the goods, owing to the large quantities of goods and orders were also passed by the courts concerned, giving safe custody of the contraband to the complainant. Regarding the other matters, where it has been alleged that there is delay in depositing the contraband, a convincing argument has been placed before us that owing to the large quantities of goods seized during raids and the dearth of sufficient storage space in the courts concerned, and in view of the safe custody of the goods ordered in some cases, the delay in producing the contraband before the Court has occurred.
36. There cannot be any doubt that huge quantities of spurious drugs have been seized by the investigating agency and in some cases, as has already been observed by us, on a perusal of the booklets furnished to the detenus, the investigating agency has taken steps to retain the seized goods in safe custody, getting necessary orders from the courts concerned and when such huge quantities of goods are involved, it is understandable that some delay in producing the goods before the courts concerned is imminent. Therefore, we find no prejudice having been caused to the detenus. Therefore, this argument advanced on the part of the detenus is rejected.
37. It is the further argument of Mr. Abudukumar Rajarathinam, the learned Counsel appearing for the detenus in H.C.P. Nos. 805, 808 and 809 of 2010 that in the chemical analysis reports it has been mentioned that the drugs seized are ''standard drugs'', but without awaiting the result of the chemical analysis, the impugned orders of detention were unnecessarily slapped on the detenus and hence the said orders are bad in law and need to be set aside.
38. In support of his arguments, he would rely on a judgment of the Honourable Apex Court in Madhu Garg v. Union of India and Anr. 2004 SCC 1999, wherein it has been held as follows:
18. A bare perusal of the aforementioned averments in the said notice do not leave any manner of doubt whatsoever that upon chemical analysis of materials, it was found that the samples were made up of alloy steel. It has not been disputed before us that the alleged goods which are the subject-matter of the export were seized in the presence of the detenu and were sent for chemical analysis before CRCL. Upon obtaining a report dated 23.10.2003, it appears, that the samples were made up of alloy steel although the test report could not throw any light as to whether the goods were alloy steel forging (machined), as declared by the exporter. The subject-matter of the consignment, therefore, was not scrap metal. Had the detaining authority waited for the results of the said chemical analysis before issuing the impugned order of detention, the first ground stated therein could not have been made a basis therefor.
39. According to the learned Counsel, this judgment of the Honourable Apex Court squarely applies to the facts of the present cases and hence, the detention orders are also liable to be quashed.
40. But, on a perusal of the entire materials placed on record, we are able to see that huge quantities of spurious drugs have been seized from various accused and samples of the same were sent for chemical analysis. Though in some cases, it has been reported to be ''standard drugs'', the same is not the case of others and it is not the case of the detenus also that all the drugs seized from them are found to be standard drugs on analysis. Just for the reason that some of the samples are found to be that of standard drugs, it cannot be said that all that have been seized from the detenus are standard drugs, since in many matters, it is proved otherwise. Therefore, the above judgment relied on by the learned Counsel for the detenus is not helpful to them, since cannot be made applicable to the facts and circumstances of the cases on hand. Accordingly, this argument advanced on the part of the detenus is also rejected.
Arguments regarding non-suply of certain documents and translated versions:
41. A common argument has been advanced in these matters that the documents sought for by the detenus by their individual representations were not supplied to them. On verification of the requests of the detenus with that of the paper booklets and upon hearing the arguments of the learned Advocate General, it is seen that what has been sought for by the detenus are mostly the lists of the seized medicines, which were seized right in the presence of the detenus or their workers under mahazars by the investigating agency. Therefore, the non-furnishing of the said documents to the detenus by the detaining authority, regarding which there is complete knowledge to the detenus, does not, in our considered view, vitiate the order of detention, since no prejudice of whatsoever has been caused to them.
42. It is by now a settled position of law that not that the non-furnishing of copies of all the referred documents, which does not form part of the grounds of detention and also are not the relied upon documents would vitiate the order of detention and what must be established by the detenu is the prejudice caused to him by such non supply of documents.
43. In
Merely because copies of some documents have not been supplied, they cannot by any stretch of imagination be called as relied upon documents. While examining whether non-supply of a document would prejudice a detenu, the court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced.
44. As has been observed by us supra, the lists of seized medicines, the copies of which were alleged to have been not furnished to the detenus are not the relied on documents and therefore, in our considered view, no prejudice of whatsoever, has been caused to the detenus. Therefore, this argument advanced on the part of the detenus is also rejected.
45. It has also been argued on the part of the detenus that the Tamil translated versions of some of the documents were not furnished to the detenu.
46. No prudent man could deny the fact that there cannot be an English illiterate in the pharma business, because all that they are dealing with are English medicines and none could expect a prescription of a medical practitioner in vernacular language or that the names of the medicines be in vernacular language. Therefore, even a delivery boy working with a pharmaceutical distributor will be English literate, as the nature of the job demands. All these detenus being either stockists or agents or working in pharma field for quite a long number of years, it cannot be said that they are English illiterates and hence, translated copies of all such referred documents should be furnished to them. But, it seems, the vernacular translated versions have been supplied to the detenus regarding the relied upon documents with abundant caution by the Respondents.
47. On behalf of the detenu in H.C.P. No. 967 of 2010, it has been argued that he hails from Rajasthan and does not know to read and write Tamil and in spite of his request, the Tamil wordings in the Detention Order were not translated and furnished to him, which has caused much prejudice to him.
48. This argument advanced on the part of the detenu has been countenanced on the part of the learned Advocate General, stating that this detenu has undergone his studies in Chennai and a resident of Chennai for the last more than 12 years and is well versed with Tamil. Therefore, a legal presumption would arise that he is well aware of the Tamil. Further, on a perusal of the detention order, it is seen that the Tamil versions extracted in the detention order are nothing but the shoutings of the public against this scam. The other documents, copies of which were sought for by the detenu are not the relied upon documents by the detaining authority. Therefore, viewing from any perspective, no prejudice of whatsoever has been caused to the detenu by not furnishing the above required documents of the detenu, which are nothing but the invoices and such other business related documents and well within the knowledge of the detenus themselves. Accordingly, this argument advanced on their part is also rejected.
49. The other point that has been raked up on the part of some of the detenus like the one in H.C.P. No. 1171 of 2010 is that they are the employees of the medical shops and have no role to play in the alleged scam and hence the impugned orders of detention are vitiated on this ground.
50. The detaining authority having considered all the relevant material placed on record has arrived at the subjective satisfaction regarding the role played by such of the detenus also and their involvement or otherwise in the crime would definitely be a point for argument during trial and not at this stage. Therefore, this argument advanced on the part of the detenus also cannot sustain.
Social interest v. Personal interest:
51. It is common knowledge of anyone that garbage dumps usually overflow with plastic bags, the bane of the green brigade. But since the time of uncovering of this scam, garbage dumps in most parts of Tamil Nadu were among the places where medicines -well past their expiry date - found end up, not to get new labels and end up on shelves in pharmacies but to be destroyed so those involved in the scam could go undetected. From the materials placed on record, we are able to see that ragpickers in Chennai and its suburbs were in for a surprise when they reached the dumping yards sometime in the middle of March, 2010 since along with wastepaper, discarded polythene sachets, rubber goods and plastic articles, there were huge quantities of medicines in vials, tubes, bottles and strips. It soon came to be known that spurious and time-barred drugs had found their way to open grounds, dumping yards, roadsides and lake bunds in different parts of Tamil Nadu following a crackdown by the Government on what turned out to be an illegal pharmaceutical supply chain.
52. We are also able to see that truckloads of counterfeit and time-barred medicines were moved out from wholesale godowns to retail outlets after being made to appear genuine with the use of sophisticated technology in printing and packaging. Expired drugs from junkyards were also collected and re-circulated after fresh expiry dates and batch numbers were printed on them. It is seen that the share of Tamil Nadu in drug export is Rs. 3,500 crore, which accounts for 10 per cent of the medicine exported by the country, and the value of drugs produced in the State annually is Rs. 6,000 crore. But, as a result of this shameful scam, which has sent shocking waves throughout not only the State but also the country, the reputation of the State has been drastically brought down, further making the importers to view each medicine with suspicion besides causing panic among the innocent purchasers of medicine. This scam put dent to the reputation consistently earned and so far maintained by Chennai as the ''Mecca of Medicine'' and the hub of medical tourism. There were 697 units manufacturing allopathic drugs, 14 making homeopathic medicines, and 113 producing cosmetics, besides 42,271 retail medical outlets in the State, as on October 31, 2009.
53. In
Preventive detention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised so as not ot undermine the fundamental freedoms guaranteed to our people, the procedural safeguards are to ensure that yet these must be looked at from a pragmatic and commonsense point of view. An understanding between those who exercise powers and the people over whom or in respect of whom such power is exercised is necessary. The purpose of exercise of all such powers by the Government must be to promote common well-being and must be to subserve the common good. It is necessary to protect therefore the individual rights insofar as practicable which are not inconsistent with the security and well-being of the society.Observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority.
54. In SUNIL FULCHAND SHAH v. , UNION OF INDIA AND OTHERS 2000 SCC 659 also, a Constitutional Bench of the Honourable Apex Court has taken the similar view and has held as follows:
... In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. The Supreme Court, as the guardian of the Constitution, though not the only guardian, has zealously attempted to preserve and protect the liberty of a citizen. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.
55. Even in the cases on hand, the acts alleged to have been indulged in by the detenus and other accused are shocking, posing danger to the public health and therefore, the interest of the State would definitely prevail over the individual liberty claimed by the detenus. The detention orders passed in these cases are precise, pertinent, proximate and relevant without any vagueness or staleness and the incidents have been highlighted in the grounds of detention coupled with the definite indication as to the impact thereof on the society, particularly that of the public health.
56. All these would clearly substantiate the subjective satisfaction arrived at by the detaining authority as to how the acts of the detenus were prejudicial to the public order and public health. In such circumstances, as has been observed by the Honourable Apex Court in Commissioner of Police and Ors. v. C. Anitha (SMT) 2004 SCC 1944, Court cannot substitute its own opinion for that of the detaining authority.
57. On the part of Mr. N. Jothi, the learned Counsel appearing for the detenu in H.C.P. No. 1807 of 2010, it has been argued that in almost all the cases, the voluminous booklets and the grounds of detention were served on the detenus at similar time, which is impracticable and cannot be believed. By this, the learned Counsel wanted to impress on us that the timing and date are ante-dated. But, we are not able to appreciate this argument advanced on the part of the detenu, for the reason that the Superintendent of the Central Prison will not serve the said documents on the detenus personally but through his mechanism and therefore, it is not at all a humanly impossible act to serve the documents on the detenus at almost all the same time.
Further more, there is no procedural irregularity or illegality committed by the authorities concerned at any stage of the detention orders being inflicted on the detenus. Viewing from any angle, we are unable to find any illegality in the orders of detention slapped on the detenus and accordingly, all these petitions filed on behalf of the detenus must fail and accordingly, they are dismissed.
