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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 whether Ketamine and Ketamine Hydrochloride are one and the same, would amount to non-application of mind vitiating the orders of detention concerned in these HCPs.

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 referred to as Ketamine Hydrochloride. The Chemical Analysis Report found at page 328 of the paper book says that the samples drawn from the contraband responded to the test for Ketamine Hydrochloride, an organic compound . It also contains a statement to the effect that the purity of the samples could not be determined for want of reference standard and facilities. The export of Ketamine Hydrochloride, according to the detaining authority, is prohibited unless a No Objection Certificate from the Narcotics Commissioner is obtained in accordance with Notification No.67(RE-2007)/2004-2009, dated December 27, 2007. A copy of the notification is found at page 330 of the paper book. The said notification, as rightly pointed out by the learned senior counsel for the petitioners refers to the prohibited item, export of which shall be allowed subject to obtaining a No Objection Certificate from the Narcotics Commissioner, is named Ketamine and not Ketamine Hydrochloride or derivatives of Ketamine. In this regard, the learned senior counsel for the petitioners drew our attention to the judgments in (1) N.K.Jawahar Ali and others vs. The State of Tamil Nadu, rep. by its Secretary, Public (SC) Department, Fort St. George, Chennai  600 009 and others reported in 2009-2-L.W.(Crl.) 1285, and (2) Esakkimuthu vs. State represented by Commissioner of Police, Office of the Commissioner of Police, Kokkirakulam, Tirunelveli City and Another reported in (2009) 3 MLJ (Crl) 1, both decided by the division benches of this court. In the said cases, the earlier division benches have held that the non-application of mind on the part of the detaining authority as to whether Ketamine and Ketamine Hydrochloride are one and the same substance would amount to non-application of mind and that the same would vitiate the ordes of detention concerned in those cases, which were also clamped under section 3(1)(i) of the COFEPOSA Act.

10. The learned Additional Public Prosecutor and the learned Senior Central Government Standing Counsel, on instructions from the respective authorities, have also submitted 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 above said view expressed by the earlier division benches, this court 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.