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TMI Blog2011 (6) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the respondent. 4. The order dated 6.8.2010 is the Arrest Memo issued against the first writ petitioner. The order had stated that on specific intelligence, in a mahazar proceedings, dated 05.08.2010 and 06.08.2010, the petitioner was intercepted by the Officers of the Directorate of Revenue Intelligence, Chennai (DRI) at the Arrival Hall of the Chennai Airport on 05.08.2010. When the petitioner was arriving from Mumbai by Flight IC 173, he was in possession of lorry transport receipts, which according to him were for transporting Ketamine from Mumbai to Chennai and subsequently to smuggle it out of the Country. Based on the lorry receipts, 150 Kgs. of white colour powder suspected to be Ketamine were seized from the premises of the Transporters. The petitioner also made a voluntary statement, dated 06.08.2010 under Section 108 of the Customs Act, 1962. He had admitted his conscious involvement with the seized contraband materials. Therefore, the respondent had stated that they had reason to believe that in view of the seized contraband, the petitioner had consciously concerned himself in the smuggling of the same, thereby rendering the goods liable for confiscation under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction that the goods have been brought within the customs area for the purpose of export. The exercise of power of arrest made against the petitioners is ex facie illegal, violative of the Customs Act and unconstitutional. Further what was seized was only a half white substance. The remand report says that it was a sample tested for Ketamine Hydrochloride, while the arrest memo mentioned it as Ketamine. The report says opposite and by looking at the substance, one cannot say whether it is Ketamine or Ketamine Hydrochloride. 8.It was further argued that the notification under the FTDR Act must be strictly construed and when the notification referred to only Ketamine, it cannot be presumed that it includes Ketamine Hydrochloride. Two division benches of this Court have held that Ketamine Hydrochloride cannot be presumed to be Ketamine. Since the petitioners have been incarcerated on illegal arrest, they are entitled to have the arrest memos quashed and they can be set at liberty. 9. The learned Special Public Prosecutor Mr.N.P.Kumar had stated that the petitioners have been arrested. Even though attempts were made to make it appear that they were subjected to a third degree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il sale and for export out of India, it requires licence and conformation to the labelling and other requirements. It was also stated that the provisions of the Act is clearly attracted as the petitioners have admitted the smuggling the said substance outside India. 11. With reference to the contention that Ketamine has been different from Hydrochloride, in paragraph 12 of the counter, it was averred as follows: "12.I respectfully submit that Ketamine Hydrochloride is an item prone for smuggling out of India which fact emerges from the number of seizures effected by DRI in the past. Ketamine Hydrochloride is a chemical compound of Ketamine having an identical effect as that of Ketamine and more stable than Ketamine and Ketamine can be retrieved by reverse chemical process. It is because its abuse results in what are described as "out of body" or near death" experiences; that the abuse of Ketamine has been spreading rapidly in the "rave party" scene in East and South East Asia and also in Europe and in the United States; that for the said illicit purpose of abuse by youths, Ketamine Hydrochloride is being smuggled out of India which not only spoils th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notification, dated 27.12.2007, it was stated that the export is allowed subject to obtaining No Objection Certificate from the Narcotics Commissioner. The Government itself had stated in the notification, dated 10.2.2011 issued by the Ministry of Finance that all forms and derivatives of Ketamine are also psychotropic substance. 14.It is not the case of the petitioners that they had either Export licence to export the said goods or that they had No Objection Certificate from the Narcotics Commissioner. The argument that Ketamine and Ketamine Hydrochloride are two different substances may be true in terms of advanced Chemistry, but the psychotropic effect of two chemicals are no different from each other. The petitioners cannot be allowed to have any hairsplitting argument on the said issue. The learned counsel for the petitioners placed heavy reliance upon an unreported division bench judgment of this Court in Geethalakshmi Vs. The Secretary to Government of Tamil Nadu, Public (SC) Department, Secretariat, Chennai-9 and another in H.C.P.Nos.1303 and 1306 of 2010, dated 18.6.2010. This is for the purpose of contending that the division bench of this court comprising C.Naga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate' from the Narcotics Commissioner. The said document does not contain the word 'Ketamine Hydrochloride', which is said to have been exported without obtaining permission from the authorities concerned. Though a submission was made by the learned Additional Public Prosectutor that the Ketamine Hydrochloride is nothing but the derivative of 'Ketamine', there is no document filed in support of the submission made by the learned Additional Public Prosecutor. Under such circumstances, the Court is of the view that the detaining authority has travelled beyond the averments of documents available before him and inferred that Ketamine Hydrochloride can be exported by obtaining 'No objection Certificate', when the document relied upon by him says only Ketamine. Therefore, the said act of the detaining authority shows his non-application of mind in passing the impugned orders." 16.However, this question in those cases arose in the context of application of mind of the detaining authority and also to find out whether the detaining authority had applied all relevant factors before passing the order or detention. The observation made in releasing the detenue ..... 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