Madras High Court
Rathinam vs State, Rep. By Its Secretary To ... on 17 November, 2004
Equivalent citations: 2005(1)CTC516, 2005(101)ECC659
Author: P.D. Dinakaran
Bench: P.D. Dinakaran, S.R. Singharavelu
ORDER P.D. Dinakaran, J.
1. The petitioner is the wife of one Murugan alias Mottai Murugan (hereinafter referred to as "the detenu"), who was ordered to be detained by an order 22.7.2004 of the first respondent herein branding him as a Drug Offender under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982 (for brevity the "Tamil Nadu Act 14 of 1982"), of course based on a ground case said to have taken place on 9.7.2004 at 7.00 a.m. when the police party, on the information of their informant, caught hold of the detenu and found the detenu holding a yellow colour bag. When the bag was opened it was found that the bag contained an object wrapped up in the newspaper. The newspaper was unfolded and the object was found to be 1 Kg. of Ganja. The police party, following the procedures, sent two samples of 25 Grams each of Ganja for chemical examination and the balance of 950 Grams of Ganja was wrapped in the same newspaper, put in the same yellow bag, tied with twine and a seal was affixed. Thereafter, a case was registered in Crime No. 275 of 2004 under Section 8(C) read with Section 20(b)(ii)(A) of the Tamil Nadu Narcotic Drugs and Psychotropic Substances Act, 1985, and the detenu was remanded to judicial custody.
2. The detaining authority also referred to 6 adverse cases registered against the detenu in the impugned order, which are extracted as follows:
(i) Crime No. 44 of 2002 on the file of the Virudhunagar West Police Station with reference to the occurrence said to have taken place on 5.2.2002 for alleged illegal possession of 600 grams of Ganja without having any Government licence nor valid permit;
(ii) Crime No. 524 of 2002 on the file of the Virudhunagar West Police Station with reference to the occurrence said to have taken place on 24.11.2002 for alleged illegal possession of 250 grams of Ganja without having any Government licence nor valid permit;
(iii) Crime No. 108 of 2003 on the file of the Virudhunagar West Police station with reference to the occurrence said to have taken place on 4.3.2003 for alleged illegal possession of 100 grams of Ganja without having any Government licence nor valid permit;
(iv) Crime No. 363 of 2003 on the file of the Virudhunagar West Police Station with reference to the occurrence said to have taken place on 20.7.2003 for alleged illegal possession of 1 Kg. of Ganja without having any Government licence nor valid permit;
(v) Crime No. 670 of 2003 on the file of the Virudhuriagar West Police Station with reference to the occurrence said to have taken place on 26.11.2003 for alleged illegal possession of 100 grams of Ganja without having any Government licence nor valid permit; and
(vi) Crime No. 64 of 2004 on the file of the Virudhunagar West Police Station with reference to the occurrence said to have taken place on 14.2.2004 for alleged illegal possession of 100 grams of Ganja without having any Government licence nor valid permit.
3. Mr. G.R. Swaminathan, learned counsel for the petitioner attacks the impugned order of detention on two grounds:
(i) the detaining authority ought not to have invoked the provisions of Tamil Nadu Act 14 of 1982 in view of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the "PIT NDPS Act"), which occupies the field of legislation relating to preventive detention, inasmuch as PIT NDPS Act prevails over the Tamil Nadu Act 14 of 1982, by operation of Article 254 of the Constitution of India; and
(ii) as the offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 are non-bailable in view of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, there is no imminent possibility of the detenu coming out on bail and therefore, the finding of the detaining authority, that there is imminent possibility of the detenu coming out on bail, suffers from non-application of mind.
4.1. The first contention, viz., the detaining authority ought not to have invoked the provisions of Tamil Nadu Act 14 of 1982 in view of the provisions in PIT NDPS Act which occupy the field by operation of Article 254 of the Constitution of India, is misconceived.
4.2. The petitioner is branded as a "Drug-Offender" and the drug-offender is defined under Tamil Nadu Act 14 of 1982 as follows:
Section 2 - Definitions:
(a) to (d)......
(e) "drug-offender" means 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 No. 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"
4.3. The impugned order of detention was passed on the detenu, branding him as "drug-offender", exercising the power conferred under Section 3(1) of the Tamil Nadu Act 14 of 1982, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, and after having satisfied that it is necessary to detain him.
4.4. The acting in any manner prejudicial to the maintenance of public order in the case of drug-offender is defined as follows under Section 2(a)(ii) and the explanation of the Tamil Nadu Act 14 of 1982:
Section 2 - Definitions:
(a) "acting in any manner prejudicial to the maintenance of public order", means -
(i).....
(ii) in the case of drug-offender, when he is engaged, or is 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;
(ii-A) to (v)...
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 of public health or ecological system.
4.5. It is true, the Central Government legislated the PIT NDPS Act for the prevention of illicit traffic in narcotic drugs and psychotropic substances and for the matters connected therewith, finding that illicit traffic in narcotic drugs and psychotropic substances possess 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.
4.6. While enacting the PIT NDPS Act, the Parliament was well aware that the Central Government and State Government are empowered to make orders of detention with respect to any person (including a foreigner) if they are of opinion that it is necessary so to do with a view to preventing him from committing illicit traffic in narcotic drugs and psychotropic substances. However, it is relevant, to note that the word "drug-offender" is nowhere defined in the PIT NDPS Act, even though the word "drug-offender" as defined in Tamil Nadu Act 14 of 1982 includes a person who contravenes the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act No. 61 of 1985). Hence, it is obvious that the "drug-offender" as defined in Tamil Nadu Act 14 of 1982 is exhaustive in nature, even though the subject matter of both the legislations are relating to preventive detention governed under Entry (3) List (III) of the Concurrent List, viz., Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.
4.7. Of course, an argument was advanced by Mr.G.R.Swaminathan, learned counsel for the petitioner that in view of the provisions of the PIT NDPS Act, the act of the detenu attracting the definition of "drug-offender" under Section 2(e) of the Tamil Nadu Act 14 of 1982 is governed under the PIT NDPS Act and therefore, PIT NDPS Act prevails over Tamil Nadu Act 14 of 1982 by operation of Article 254 of the Constitution of India. In this regard, reliance was placed in the decision in Godawat Pan Masala Products I.P. Ltd. v. Union of India, , to explain repugnancy between the two statutes, namely PIT NOPS Act and the Tamil Nadu Act 14 of 1982, viz., "Repugnancy between two statues may thus be ascertained on the basis of the following three principles:
(1) Whether there is direct conflict between the two provisions;
(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."
According to Mr.G.R.Swaminathan, learned counsel for the petitioner, since PIT NDPS Act enacted by the Central Government occupies the filed, namely Entry (3) List (III) of the Concurrent List, referred to above, the PIT NDPS Act prevails over the Tamil Nadu Act 14 of 1982 by operation of Article 254 of the Constitution of India.
4.8. A reference to Article 254 of the Constitution of India, in this context, is inevitable and the same reads as follows:
Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been ¦ reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
4.9. Explaining the doctrine of repugnancy, as well as the doctrine of pith and substance and occupied field, the Apex Court in I.T.C. Ltd. v. State of Karnataka, 1985 Supp, SCC 476, laid down the following principles:
"The cardinal principles justifying the competency of the respective Legislatures with respect to the entries concerned are:
(1) Entries in each of the Lists must be given the most liberal and widest possible interpretation and no attempt should be made to narrow or whittle down the scope of the entries.
(2) The application of the doctrine of pith and substance really means that where a legislation falls entirely within the scope of an entry within the competence of a State Legislature then this doctrine will apply and the Act will not be struck down.
(3) If the entrenchment is minimal and does not affect the dominant part of some other entry, which is not within the competence of the State Legislature, the Act may be upheld as constitutionally valid.
(4) The nature and character of the scope of the entries having regard to the touchstone of the provisions of Articles 245 and 246.
(5) The doctrine of occupied field has a great place in the interpretation as to whether or not a particular Legislature is competent to legislate on a particular entry. This means that when the field is completely occupied by List I, as in this case, then the State Legislature is wholly incompetent to legislate and no entrenchment or encroachment, minimal or otherwise, by a State Legislature is permitted. Where the field is not wholly occupied, then a mere minimal encroachment or entrenchment would not affect the validity of the State Legislation. These five principles have to be read and construed together and not in isolation. It is also well settled that where two Acts, one passed by the Parliament and the other by a State Legislature, collide and there is no question of harmonising them, then the Central legislation must prevail.
............
The principles of repugnancy in Indian Constitution are well-settled. These are as follows:
(1) A legislation, which in its pith and substance, falls within any of the entries of List I of the Seventh Schedule to the Constitution, would be exclusively within the competence of the Parliament.
(2) A legislation falling exclusively, in its pith and substance, within any of the entries in List II of the Seventh Schedule, would be within the exclusive competence of the State Legislature.
(3) A Central law which in its pith and substance, falls within any entry In List I would be valid even though it might contain incidental provisions in List II which may contain ancillary provisions which might touch on an entry of List I incidentally.
(4) A State law, which in its pith and substance, within any entry in List II would be valid even though it might incidentally touch upon a subject falling within List I. (5) A Central law, which in its pith and substance, dealt with a subject falling within List II would be bad and ultra vires the Constitution. Similarly, a State law which in its pith and substance dealt with a matter falling within List I would be invalid and ultra vires the Constitution.
(6) The concept of repugnancy arises only with regard to laws dealing with subjects covered by the entries falling in List III, in respect of which both Parliament and State Legislature are competent to legislate, and only if both the laws could not exist together.
There cannot be any repugnancy in respect of State laws passed in respect of matters falling in pith and substance in List II or in respect of Central laws passed on subjects falling in List I."
4.10. It is a settled law that both the Acts can operate in their respective fields and there is no repugnancy if both the Acts are considered in the light of their respective true nature and character. While giving due weight to Centre's supremacy in the matters of legislation, the States' legitimate sphere of legislation should not be unnecessarily whittled down, because that would be unwarranted by the spirit and basic purpose of the constitutional division of powers; and all the entries should be construed in harmonious manner so as to avoid any conflict. In other words, only in case of conflict or collision or where there is a glaring repugnancy the very doctrine of occupied field will be attracted.
4.11. In the instant case, keeping in mind the scope and object of both the enactments and taking into consideration the exhaustive definition of the word "drug-offender", which includes those who contravene the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, and finding that there is no conflict or collision between the same, in our considered opinion, there cannot be any legitimate bar for invoking the provisions of Tamil Nadu Act 14 of 1982 in passing a detention order merely because the PIT NDPS Act was enacted to prevent illicit traffic in narcotic drugs and psychotropic substances and for the matters connected therewith.
4.12. The first contention of the learned counsel for the petitioner is, therefore, rejected.
5.1. To deal with the next contention of the learned counsel for the petitioner, viz., as the offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 are non-bailable in view of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, there is no imminent possibility of the detenu coming out on bail and therefore, the finding of the detaining authority, thai there is imminent possibility of the detenu coming out on bail, suffers from non-application of mind, it is apt to extract Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which reads as follows:
"Section 37. Offences to be cognizable and non-bailable. -
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor oppose the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."
5.2. A careful reading of Section 37(ii) (Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 makes it clear that if the Court is satisfied that there is reasonable ground for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail, he shall be released on bail. In other words, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 only makes the power to grant bail by the Court concerned more stringent than in ordinary course under the provisions of the Code of Criminal Procedure, but Section- 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 does not rule out the imminent possibility of granting bail altogether.
5.3. For the reasons aforesaid, the second contention of the learned counsel for the appellant is also rejected.
In the result, this Habeas Corpus petition is dismissed.