TMI Blog2010 (6) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... the detenu Hameed Mustaq is the petitioner in H.C.P.No.1303/2009. Suresh, the brother of the detenu S.Tamilselvam @ Kumar is the petitioner in H.C.P.No.1306/2009. 2. Hameed Mustaq, the detenu concerned in H.C.P.No.1303/2009 was arrested on 02.05.2009 under arrest memo F.No.VIII/48/8/2009-DRI dated 02.05.2009 on the ground that 55.400 Kgs of white colour granular crystalline substance believed to be Ketamine was seized by the officers of the Directorate of Revenue Intelligence from export consignment covered under Shipping Bill No.3358666 dated 29.04.2009 filed in the name of M/s.Raja Rajeswari Enterprises, having IEC No.0406012113 as the same was believed to be attempted to be exported without a No Objection Certificate envisaged under Notification No.67(RE-2007)/2004-2009, dated December 27, 2007 issued by the Director General of Foreign Trade under Section 5 read with section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 and without mentioning the fact that Ketamine was being exported in the shippingbill and by concealment in the export consignment under which Potash Feldspar was supposed to be exported, which made the goods liable for confiscation under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutor, representing the first respondent and by Mr.S.Udayakumar, learned Senior Central Government Standing Counsel representing the second respondent. The materials placed in the form of booklet and also in the form of typed set of papers were also perused. 7. Though several grounds have been raised in the petitions assailing the orders of detention, Mr.B.Kumar, learned senior counsel appearing for the petitioners mainly relies on the following contentions:- i) There was non-application of mind on the part of the first respondent/detaining authority, as to whether the contraband alleged was Ketamine or Ketamine Hydrochloride; that the arrest memo refers to the contraband as Ketamine, whereas the Chemical Analysis Report is to the effect that the contraband responded to the test of Ketamine Hydrochloride; that even in the grounds of detention, at one place the contraband is referred to as Ketamine and at another place, it is referred to as Ketamine Hydrochloride; that the detaining authority failed to notice the fact that Ketamine is a substance different from Ketamine Hydrochloride, an organic compound and that the failure on the part of the detaining authority to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eigh bridge and after weighment, the same was taken to A.V.M. Enterprises at Korrukkupet, where two more bags (found to contain Ketamine Hydrochloride) were kept underneath the bags in the last row of the container by Tamilselvam @ Kumar and one Arul and thereafter the container was transported to Chennai port. 9. The first and foremost contention of the learned counsel for the petitioners is that though the Directorate of Revenue Intelligence authorities might have found out that 55.400 Kgs of powder suspected to be Ketamine was found in two bags kept in the container for shipment as per vessel M.V.Santa Rosa, there is an ambiguity as to whether the substance is Ketamine or Ketamine Hydrochloride and that the failure to consider whether Ketamine and Ketamine Hydrochloride are one and the same substance shall vitiate the orders of detention. As rightly pointed out by the learned senior counsel for the petitioners, the arrest memos found at pages 177 and 272 refer to the contraband as Ketamine and not Ketamine Hydrochloride. It is also pertinent to note that in the grounds of detention, at one place, the contraband is referred to as Ketamine and that at another place, the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the considered view that the failure to consider the question whether Ketamine and Ketamine Hydrochloride are one and the same or different substances exhibits non-application of mind vitiating the orders of detention. 11. In addition to the above, as it has been conceded on behalf of the respondents that Ketamine is different from Ketamine Hydrochloride, an organic compound, the detaining authority ought to have applied its mind as to the applicability of the Notification No. 67(RE-2007)/2004-2009, dated December 27, 2007, wherein Ketamine alone has been referred to and Ketamine Hydrochloride and derivatives of Ketamine have not been referred to. The same, no doubt, exhibits non-application of mind on the part of the detaining authority. It is also pertinent to note that the percentage of Ketamine found in the contraband which was identified by the laboratory to be Ketamine Hydrochloride has not been found and the detaining authority has also failed to take the same into consideration in forming its subjective satisfaction. The same shall also amount to non-application of mind vitiating the order of contention. 12. With regard to the second contention that there was de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a relied on document, which was said to be in the name of Arul. The failure to supply the above said documents will, no doubt, would have prejudiced the detenus as the same provided a handicap for them to make an effective repesentation against the revocation of the orders of detention. 14. In this regard, the learned senior counsel for the petitioners drew our attention to the judgment of the Hon'ble Supreme Court in Yumnam Mangibabu Singh v. State of Manipur and others reported in AIR 1983 SUPREME COURT 300, wherein it has been held that the non-furnishing of copies of relied on documents, namely two statemens regarding the said case, really prevented the appellant therein from making effective representation against his detention and hence the constitutional safeguard was breached by the order of detention impugned in that case. Applying the said ratio to the case on hand, we are satisfied that the orders of detention assailed in these HCPs are vitiated because of the non-supply of documents, which are not only referred to but also relied on by the detaining authority in the grounds of detention. 15. The next contention raised by the learned senior counsel for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication of mind on the part of the detaining authority and that the same shall vitiate the orders of detention. It is the further contention of the learned senior counsel for the petitioners that in the light of the above said discrepancy, the detaining authority should have sought a clarification regarding the above said discrepancy regarding number of bags found in the container and the failure to do so will show non-application of mind and vitiate the orders of detention. 17. We find substane and force in the above said contention of the learned senior counsel for the petitioners. As rightly pointed out by the learned senior counsel for the petitioners, the detaining authority had not drawn his attention to the above said discrepancy, a vital one. In the light of the discrepancy regarding the number of bundles found in the container whereas the seals put by the customs authorities were found in tact, the customs authorities, who were present at the time of stuffing the container alone shall have the answer for the same. Especially, the statement of one Mr.Ravichandran, Examiner of Customs Department, who was present at the time of loading and who put the seals to the conta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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