Madras High Court
Usha Rani vs The District Magistrate And Collector ... on 21 December, 1993
Equivalent citations: 1994CRILJ2209
Author: M. Srinivasan
Bench: M. Srinivasan
JUDGMENT Srinivasan, J.
1. The Original Petition is a petition under Art. 226 of the Constitution of India for issue of writ of Habeas Corpus directing the respondents to produce the petitioner's husband Sekar, who is detained as per the order of the District Magistrate and Collector, Thanjavur, the first respondent, in C.O.C. No. 24 of 1993 dated 14-4-1993 passed under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Act 14 of 1982). When the petition was heard by two of us, it was felt that the judgement of a Division Bench in Seetha v. State of Tamil Nadu, 1993 Mad LW (Cri) 426 on which the petitioner's counsel placed reliance required reconsideration and the papers were placed before the Hon'ble the Chief Justice, who constituted this Full Bench to hear the case.
2. The facts as found in the detention order are as follows :-
On 26-3-1993, one Maruthanayagam gave a complaint to the Sub-Inspector of Police, Taluk Police Station, Kumbakonam, that on the previous night he purchased one bottle of illicit distilled arrack from the detenu, husband of the petitioner, on payment of Rs. 14/- and after consuming the same, he felt giddiness, congestion of eyes and vomiting, for which he took treatment from a native Doctor at Kumbakonam. As he suspected adulteration in the arrack sold to him, he prayed for necessary action against the detenu. After recording his statement and making necessary entries in the General Diary, the Sub-Inspector of Police arranged a prohibition raid along with his Police Party and found the detenu selling arrack in a glass tumbler from a black colour plastic can to an unknown person, who dropped the tumbler and ran away from the spot on seeing the police party. The accused was arrested on the spot and enquired and searched by the Sub-Inspector in the presence of two Constables. He seized one black colour plastic can of 5 liters capacity containing I.D. arrack, one glass tumbler and a sum of Rs. 15/- under the cover of mahazar. Samples of arrack were drawn in two bottles of about 500 ML and sealed in the presence of the witnesses. The remaining arrack was destroyed. A case was registered against the detenu in Kumbakonam Taluk Police Station as Crime No. 300/93 under sections 4(1)(i) and 4(1-A) of the Tamil Nadu Prohibition Act, 1937. The accused and the materials seized were produced before the Judicial Magistrate-II, Kumbakonam on 27-3-1993, who remanded the accused to judicial custody in the Sub-Jail, Kumbakonam on the same day. The case was investigated by the Inspector of Police, Taluk Circle, Kumbakonam. On a requisition given by the Sub-Inspector of Police, the Court sent the samples for Chemical analysis. The Assistant Director of Regional Forensic Science Laboratory, Thanjavur examined the samples and found that the sample bottle contained Ethyl Alcohol, acids, Esters, Higher Alcohol, Aldahydes and Atrophine. He also detected 4.62 Mg% (w/v) of Atrophine. The Inspector of Police, Taluk Circle Kumbakonam gave a requisition on 12-4-1993 and examined the Professor of Forensic Medicine, Thanjavur Medical College and Police Surgeon, Thanjavur. He opined that if any person consumed I.D. arrack mixed with atrophine 4.62 Mg% (w/v), he would develop giddiness, vomiting, congestion of eyes and respiratory failure, which if not treated vigorously would result in the death due to atrophine poisoning. The detention order contains particulars of the cases in which the detenu had come to adverse notice. The detenu was convicted in seven cases under Sections 4(1)(a) and 4(1)(i) of the Tamil Nadu Prohibition Act, 1937 and sentenced to pay fine. There is also reference to the 8th case registered as Crime No. 295/93 in Kumbakonam Taluk Police Station under sections 4(1)(i) and 4(1-A) of the Tamil Nadu Prohibition Act, in which the accused was arrested, but he escaped and absconded. Then he was arrested on 26-3-1993 and the case in Crime No. 300/93 was registered, the facts leading to which have already been set out. In that case, he was enlarged on bail on 2-4-1993 by the Sessions Court.
3. On the above materials, the detaining authority was satisfied that the detenu was selling arrack mixed with poisonous substances in contravention of the provisions of the Tamil Nadu Prohibition Act, 1937 and the rules made thereunder, thereby acting prejudicial to the maintenance of public order. Reference is made to the bail applications in Crime No. 300/93 in Criminal M.P. No. 1766 of 1993 and Crl. M.P. No. 7860 of 1993 and the release of the detenu on bail. The detention authority has recorded in the order that if the detenu remains on bail, he will indulge in similar activities, which will be prejudicial to the maintenance of public order and there is compelling necessity to prevent him from indulging in further similar activities. On that basis, the detention order was passed on 14-4-1993.
4. The accused was arrested on that date and lodged in Central Prison, Trichy. The Original Petition was filed on 14-6-1993 and admitted on 15-6-1993. The wife of the detenu has filed the affidavit in support of the petition in which several grounds have been raised against the validity of the order of detention. The petitioner has filed H.C.M.P. 280 of 1993 on 18-11-1993 for raising additional grounds. She filed H.C.M.P. No. 284 of 1993 on 30-11-93 to consider the constitution of the detention of her husband as illegal and temporarily release him till the disposal of the main petition. The Superintendent, Central Prison, Trichy has filed an affidavit setting out the dates on which the petitioner and others interviewed the detenu at the Central Prison, Tiruchirapalli.
5. Before considering the main petition, it will be convenient to dispose of the miscellaneous petitions. H.C.M.P. No. 280 of 1993 seeks permissions to raise additional grounds. We have permitted the counsel to argue the same and we are considering them in this judgement. Hence, that petition is ordered.
6. In H.C.M.P. No. 284 of 1993, the prayer is to consider the continuation of detention as illegal and temporarily release the detenu till the disposal of the main petition. Learned counsel for the petitioner submits that a representation was made on 28-10-1993 for releasing the detenu on parole. The same was rejected by order dated 15-11-1993, which is silent on the question of releasing him on parole. It is argued by learned counsel that the authority has not considered the said question and this Court must pass an order letting him out on parole in view of the fact that he has been under detention for nearly eight months by now. We have perused the order dated 15-11-1993. The Authority has given reasons for rejecting the representation dated 28-10-1993. There is no justification to interfere with the same. The Additional Public Prosecutor has rightly brought to our notice the ruling of the Supreme Court in Poonam Late v. M. L. Wadhawan, and submitted that the Court has no power to grant the prayer of the petitioner. The Supreme Court, in the case sited, considered a detention under the COFEPOSA Act. The Court said (para 11) :-
"11. It is pertinent to observe that the court has no power to substitute the period of detention either by abridging or enlarging it. The only power that is available to the court is to quash the order in case it is found to be illegal. That being so, it would not be open to the Court to reduce the period of detention by admitting the detenu on parole ....
At any rate, it is the appropriate Government and not the court which deals with a case of temporary release of the detenu. Since the Act authorities the appropriate Government to make an order of temporary release invariably the detenu seeking to have the benefit of temporary relief must go to the appropriate Government first. It may be that in a given case the Court may be required to consider the propriety of an adverse orders by the Government in exercise of the jurisdiction under S. 12 of the Act. On the principle that to judicial review by the superior court, the High Court under Art. 226 of this court under Art. 32 may be called upon in a suitable case to examine the legality and propriety of the Governmental action. There is no scope for entertaining an application for parole by the Court straightway (para 13).
"The legislative scheme, keeping the purpose of the statute and the manner of its fulfillment provided thereunder would not justify entertaining of an application for release of a detenu on parole. Since in our view release on parole is not a matter of judicial determination, apparently no provision as contained in the Code of Criminal Procedure relating to the computation of the period of bail was thought necessary in the Act."
As we find that the order dated 15-11-1993 is based on relevant reasons, we dismiss the petition.
7. In the main petition, learned counsel for the petitioner has put forward several contentions, which will be considered one by one hereunder. The first contention is that the order of detention is in violation of S. 32 of the Tamil Nadu Prohibition Act, 1937, inasmuch as both the bottles in which samples were taken were sent to the Laboratory for chemical analysis and, therefore, illegal and unsustainable. We will consider this contention at the end for the sake of convenience, as it is the most important among the contentions raised by the petitioner and counsel for the petitioner relies upon the judgement of a Division Bench of this Court upholding a similar contention, with which we are unable to agree.
8. The second contention is that raised in the additional grounds in H.C.M.P. No. 280 of 1993. In the affidavit it is stated that no authority informed the petitioner or other family members about her husband's detention or the place or purpose of detention immediately. Reliance is placed on the following observations of the Supreme Court in A. K. Roy v. Union of India, :-
"In order that the procedure attendant upon detention should conform to the mandate of Art. 21 in the matter of fairness, justness and reasonableness, we consider it imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time. This court has stated time and again that the person who is taken in custody does not forfeit, by reason of his arrest, all and every one of his fundamental rights. It is, therefore, necessary to treat the detenu consistently with human dignity and civilised norms of behaviour."
It is argued that in this case, the petitioner as well as the other members of the family were not informed of the detention immediately and, therefore, the order of detention is vitiated. We are unable to accept this contention. The facts of this case as evident from the affidavit filed by the Superintendent of Central Prison, Trichy, prove that the relatives and friends of the detenu had full knowledge of the detention as well as the place and purpose thereof. The following tabular column sets out the particulars of the dates and the persons who met the detenu in the prison :-
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Date Visitor's name Relationship
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20-4-1993 Pandian Co-brother 26-4-1993 Govindaraj Friend 27-4-1993 Usharani Wife 5-5-1993 Thavamani Sister 14-5-1993 Shankar Brother-in-law 19-5-1993 Usharani Wife 26-5-1993 Kaliamurthy Brother 10-6-1993 Usharani Wife 29-6-1993 Pandian Co-brother 9-7-1993 Usharani Wife 30-7-1993 Usharani Wife 16-8-1993 Sivagnanam Brother 24-8-1993 Usharani Wife 3-9-1993 Pandian Brother 11-9-1993 Usharani Wife 1-10-1993 Usharani Wife 5-10-1993 Sivagnanam Brother 19-10-1993 Pandian Co-brother 10-11-1993 Pandian Co-brother 17-11-1993 Usharani Wife
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9. As rightly pointed out by learned Additional Public Prosecutor, the observations made the Supreme Court in A. K. Roy's case, should not be torn out of the context and misinterpreted. In that case, the Supreme Court was considering the validity of the provisions of the National Security Ordinance, 1980, which was later enacted as the National Security Act (65 of 1980). Every section of the Act was challenged and S. 5 thereof corresponds to S. 5 of the Tamil Nadu Act 14 of 1982. The language was almost the same. After setting out the provisions of S. 5, the court said :-
"The objection of the petitioners to these provisions on the ground of their unreasonableness is not wholly without substance. Laws of preventive detention cannot, by the back door, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify. The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi, to keep him in detention in a far off place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food. The requirements of administrative convenience, safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides, but that can only be way of an exception and not as a matter of general rule. Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not to be sent to any far off place which, by the very person of its distance, is likely to deprive him of the facilities to which he is entitled. Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention."
10. Hence, the question which is to be decided in each case is whether the detention in the particular case is punitive in nature in view of non-intimation of the same to the relatives of the detenu. If the detention and the particulars thereof are known to the relatives, it cannot be considered to be punitive; nor can it be said to be vitiated by the failure of the authorities to send a formal communication informing the relatives of the particulars of the detention. That principle has been laid down by the Supreme Court in Union of India v. Vasanbarthi, AIR 1990 SC 1216 : (1990 Cri LJ 1244). Referring to A. K. Roy's case, , the court after extracting the above observations said :-
"6. The object and purpose of the above observation in our view seem to be that the family members of the detenu should not be kept in darkness by withholding the information about the passing of the order of detention and the place of detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meeting their relations and getting any help or assistance.
7. Coming to the present case, we are satisfied that the family members had sufficient knowledge about the detention of the detenu by virtue of the mittimus issued as well the place of detention. Therefore, no legitimate grievance can be made that there is contravention to the observation in A. K. Roy's case, ."
11. The direction given by the Supreme Court in A. K. Roy's case, in the observation extracted earlier, prescribed the procedure to be followed after the passing of the order of detention and the question whether the failure to follow the same would vitiate the order of detention has necessarily to depend on the facts of each case. Having regard to the facts of each case. Having regard to the facts of this case, particularly that the family members who are in Kumbakonam met the detenu in Trichy about six days from the date on detention, we are convinced that the petitioner as well as the other relatives of the detenu and his friends were all quite aware of the details of detention, even at the time of detention or immediately thereafter. Hence, the contention fails.
12. It is next argued that the detenu had filed a bail application in Crime No. 295 of 1993, which was one of the adverse cases referred to in the detention order, and that the papers in that application were not furnished to the detenu, though the papers in the bail application filed in Crime No. 300 of 1993, which according to him is the ground case, were given to him. There is no substance in this contention also. The detention order refers only to the two bail applications filed in Crl. M.P. No. 1766 of 1993 and Crl. M.P. No. 800 of 1993 filed in Crime No. 300 of 1993, Crl. M.P. No. 1766 of 1993 was filed before the Judicial Magistrate-II, Kumbakonam on 29-3-1993 and was rejected on the same day. Crl. M.P. No. 800 of 1993 was filed before the Sessions Court, Thanjavur on 31-3-1993 and he was released on bail on 2-4-1993. The papers relating to those two bail applications have been furnished to the detenu. There is no dispute about the same. The bail application said to have been filed in Crime No. 295 of 1993 is not referred to by the Detention Authority in the order of detention. Neither in the affidavit filed in support of the original petition, nor in the affidavits filed in support of the two Miscellaneous petitions, this contention has been raised. It is urged for the first time only in the course of arguments. No material has been placed before us to show that there was a bail application in Crime No. 295 of 1993. Even if there was such an application, it is wholly immaterial. The detaining authority has not made a reference to it or placed reliance on it in the detention order, the Supreme Court has held in State of Tamil Nadu v. C. Subramani, that non-furnishing of documents which are not relied upon in the order of detention will not invalidate the order. Hence, we reject this contention.
13. The next contention is that the General Diary in which the Sub-Inspector of Kumbakonam Taluk Police Station made entries regarding the complaint given to him by Maruthanayagam and the subsequent raid etc., has not been furnished to the detenu which would vitiate the order. The reason given by me with regard to the bail application would equally apply to the General Diary. No reliance has been placed by the detention authority on the entries in the General Diary. Hence, it is not a material document to be furnished to the detenu.
14. It is next contended that the order of detention on the grounds thereof were served on the detenu only after a time lapse of 24 hours. According to learned counsel, the detenu was arrested on 14-4-93 but the order was served on him only on 15-4-1993 at 21.25 Hrs. There is no substance in this argument. There is no prescription of time limit for service of the order of detention or the grounds thereof and normally they have to be served within a period of five days. Admittedly in this case, they have been served on the detenu on the very next day. In fact, the records show that the arrest was made at 21 Hrs. on 14-4-1993. If the detenu was served on 15-4-1993 at 21.25 Hrs. there is no delay in the service of the order of grounds thereof, which would vitiate the order.
15. The next contention is that the detention order was not placed before the Advisory Board within three weeks from the date of detention as required by S. 10 of the Tamil Nadu Act 14 of 1982. There is no substance in this contention also. The Additional Public Prosecutor has pointed out that the detention order was placed before the Advisory Board on 21-4-1993, i.e. a week after the order of detention. The Board directed the issue of summons, which were served on 21-5-1993 on the detenu. The Board heard the representations on 28-5-1993 and forwarded its report on 7-7-1993. Hence the requirements of the Act are fully complied with.
16. He then argued that the detenu made two representations, one of 27-8-1993 and the other on 28-10-1993 which have not been considered properly. It must be noted that both the representations were made long after the present petition was filed in this Court. As stated already, the original petition filed on 14-6-1993. The first representation was made on 27-8-1993. It was rejected on 20-9-1993. According to learned counsel, the points raised in the representation have not been dealt with in the order of rejection. The second representation was made on 28-10-1993. In fact it was an application for cancellation of the order of detention or to let the detenu on parole. That was rejected on 15-11-1993. The order of rejection shows that the authorities have applied their minds to the facts of the case and come to the conclusion that the prayers could not be granted. It is not necessary for the authorities to write a judgement on the representations made by the detenu setting out all the contentions raised in the representation and giving their reasons in detail with regard to each of them. Hence, the contention is rejected.
17. The next contention is that there is non-application of mind on the part of the detention authority. It is submitted that in the report given by the Chemical Analyst, the arrack seized from the detenu is stated to have contained] Atrophine. But in the statement recorded by the Inspector, Kumbakonam, the Analyst has stated that Alkaloids equivalent to Atropine are found mixed in the arrack. Learned counsel submits that it is a discrepancy which has not been noticed by the detention authority. We do not agree. It is seen from the report of the Chemical Analyst that 4.1% of Atropine is found mixed in the arrack. The report also says that the arrack contains Ethyl Alcohol, Acids, Esters, Higher Alcohol, Aldehydes and Atropine. In the statement recorded by the Inspector of Police, it is stated that the sample contained Ethyl Alcohol, Acids, Esters, Higher Alcohol and Aldehydes and Alkaloids of the Family of Atropine. It is also stated that Atropine has been chemically examined and a report has been given already. Thus, there is no material discrepancy between the report and the statement. Both disclose that the arrack contained Atropine. Hence, there is no question of any non-application of mind on the part of the Detaining Authority.
18. It is next argued that the order of detention was served on the detenu only when he was in prison on 15-4-1993. Reliance is placed on the decision of the Supreme Court in Binod Singh v. District Magistrate, Dhanbad, . The detenu in that case was already in Jail in respect of a murder case. The detention order was made when he had not surrendered in the murder case, but at the time when the order was served, he was prison after his surrender. The Court held that though there were grounds justifying the passing of the order of detention, at the time of service of order, there was no proper consideration of the fact that he was in custody and there was no real danger of his release. The Court held that though the order of preventive detention was not invalid when it was passed, the service of order was not on proper consideration. On that ground the order of detention was set aside. Learned counsel submits that in the present case, pursuant to the order of detention the detenu was arrested on 14-4-1993 and lodged in Central Prison, Trichi. Thereafter, the order was served on him at a time when he was in prison. There is absolutely no merit in this contention. When the detention is only in pursuance of the detention order there is no question of considering the factum of such detention at the time of service of such detention at the time of service of the order. Hence, the ruling in Binod Singh's case will have no application at all.
19. Now we will consider the first contention, which gives rise to an important question of law that arises in several cases. There is no dispute that the sample arrack was taken in two bottles of 500 ML each and both were sent to the Laboratory. Learned counsel for the petitioner contends that there is a clear violation of the provisions of S. 32 of the Tamil Nadu Prohibition Act, 1937. Under the third proviso to the section, where any illicit country liquor is seized, two samples of the illicit arrack shall be taken and the remaining quantity shall be destroyed. It provides that the samples taken and the pots or other receptacles in which the illicit arrack was kept shall be sent to the Magistrate having jurisdiction to acquire into the case, who shall retain one in his Court and send the other to such officer as may be prescribed for chemical analysis. The argument is that the violation of the statutory procedure vitiates the detention order. A similar contention was accepted by a Division Bench of this Court in Seetha v. State of Tamil Nadu, (1993 Mad LW (Cri) 426). The same Bench would appear to have taken the same view in several cases earlier also, which have not been reported. Some of the earlier orders of the same Bench have been placed before us, but they do not contain any reasoning except to rely upon some other earlier orders. It is stated by counsel on both sides that the reported judgement is the only detailed order and it contains the reasoning of the Bench. After referring to the definitions contained in Sections 2(a) (i), 2(b), 2(c), and 2(d) and the provisions of S. 3 of the Tamil Nadu Act 14 of 1982 as well as the provisions of S. 32 of the Tamil Nadu Prohibition Act, 1937, the Bench has referred to the judgments of the Supreme Court and of a Full Bench of this Court relied on by the Additional Public Prosecutor, ruled thus :-
"11. Learned Additional Public Prosecutor, therefore, contended that the practice of sending one bottle or two bottles for examination by Forensic Science Laboratory has no legal footing and that any violation of the same will not vitiate the order of detention. According to him as per the decisions cited above, the evidence collected in the illegal search, can be used as evidence in the Criminal Proceedings. But the citations referred to above by the learned Additional Public Prosecutor are in relation to criminal proceedings and it cannot be applied to a case of preventive detention. Here, the provisions of Tamil Nadu Prohibition Act, 1937 and the Rules, Notifications and orders made thereunder are all inbuilt under S. 2(b) of the Act 14/1982 and the Legislature in its wisdom has incorporated the provisions of the TNP Act within the definition of "bootlegger" under S. 2(b) of the Act and the procedure of sending one bottle to the Forensic Science Laboratory and retaining another bottle in the Magistrate's Court is a safeguard to a citizen as otherwise, there would be interfere with the freedom guaranteed to citizen under Arts. 19, 21 and 22(5) of the Constitution of India. In the decision, Smt. Shalini Soni v. Union of India the Supreme Court held "since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Art. 22(5) read with Art. 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu". We are unable to agree with the contention of the learned Additional Public Prosecutor that the procedure of sending one bottle or two bottles directly to the laboratory cannot be invoked in the case of preventive detention. All the more it is necessary because in a criminal case there is opportunity to the accused to prove in defence by letting in oral and documentary evidence; whereas in a case of preventive detention, there is no such opportunity for a citizen. The other limb of the argument of the learned Additional Public Prosecutor is that in the detention case, only suspicion or reasonable probability is the ground and the repetition of illegal activities of the detenu has to be prevented. Even in such cases, the procedure of sending one bottle to the Analyst and retaining another bottle in Court is not onerous and it cannot be said that it is not possible to follow. There is no other separate Rule of provision framed under the Tamil Nadu Act 14/82 and therefore, we have to take the procedure from the provisions of TNP Act for testing the sample as provided under S. 32 of TNP Act. Our Constitution has guaranteed the liberty of a citizen and freedom; but subject to certain preventive laws and even in such case, there should be just, reasonable and fair trial as pointed out in Maneka Gandhi's case (supra). We have also held in H.C.P. No. 52/92 and W.P. Nos. 11774 to 11776/92 that taking of sample of arrack in one bottle or two bottles and sending them for examination by the Forensic Science Laboratory without retaining any bottle in the Court, would vitiate the order of detention.
12. In view of the discussion made above cases (sic) we are of the opinion that the procedure under S. 32 of TNP Act has to be strictly followed even in the case of preventive detention and any violation of the same, would vitiate the order of detention. In all the above cases, we are of the opinion that the Sponsoring Authority has sent one or two bottles of samples from the seized contraband for Analyst's report and that no sample was retained in Court as per the provisions of S. 32 of TNP Act. Therefore, we hold that the detention of the detenu in the respective cases is vitiated and accordingly, the order of detention in the respective cases is quashed."
20. We are unable to agree with the view taken by the Division Bench in that case. Our reasoning is as follows :- Tamil Nadu Act 14 of 1982 is a preventive detention statute and is based upon principles entirely different from the Tamil Nadu Prohibition Act, 1937, which is an enactment governed by the Criminal Jurisprudence. While a preventive detention Act is for the purpose of preventing the commission of crime, in the best interest of the society, a punitive enactment is for the purpose of punishing the persons who have committed the crime. While one deals with the stage anterior to the commission of the offence, the other deals with the stage posterior to it. The basis for the one is totally different from the other. While the rule of Criminal Jurisprudence is that the guilt of an accused must be proved beyond all reasonable doubt, for the purpose of preventive detention, there is no question of deciding whether the detenu is guilty of an offence. The dichotomy between the two branches of law has always been recognised and maintained as evident from the various rulings of the Supreme Court. An order of preventive detention is to be made on the subjective satisfaction of the concerned authority in accordance with the provisions contained in the relevant enactment. If the procedure prescribed in the enactment is complied with, the order of detention cannot be interfered with by a Court. The only grounds on which the Court can set aside an order of detention are : (1) if it is vitiated by mala fides, (2) such an order could not have been passed by any reasonable person and (3) there is a violation of Art. 22(5) of the Constitution of India. The provisions of any enactment belonging to the Criminal Jurisprudence cannot be telescoped unto the preventive detention Acts and the failure of the concerned authorities to adhere strictly to the procedure prescribed in such enactment will not vitiate the orders of detention, if the requirements of the detention Acts have been satisfied. In fact in the passage quoted above, the Division Bench has recognised the distinction between Criminal cases and preventive detention cases. In order to distinguish the cases cited by the Additional Public Prosecutor, the Bench said, "But the citations referred to above by the learned Additional Public Prosecutor are in relation to criminal proceedings and it cannot be applied to a case of preventive detention." However, the Bench did not apply the principle while deciding the question before it.
21. In State of Bombay v. Atama Ram, , the Court was considering a case under the Preventive Detention Act (IV of 1950). After referring to the provisions of Art. 22(5) of the Constitution, the Court said (Para 5) :-
"(5) It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure, Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order, therefore, cannot always be in possession of full detailed information when it passes the order, and the information when it passes the order, and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act."
The Court referred to the requirements of S. 3 of the Preventive Detention Act and said :-
"The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a Court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a Court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government."
22. In Shibban Lal v. State of U.P., , it was held that a detention order depends entirely upon the satisfaction of the appropriate authority and the sufficiency of the grounds upon which such satisfaction purports to be based, cannot be challenged in a Court of law except on the ground of mala fides, provided they have a rational probative value and are not extraneous to the scope or purpose of the Legislative provision. The Court said (Para 8) :-
"A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under S. 7 of the Act."
23. In Sahib Singh Dugal v. Union of India, , the petitioner was put in Jail as an under-trial prisoner for an offence under S. 3 of the Official Secrets Act. The Deputy Superintendent of Police, who was in-charge of the investigation, made a report to the Court that the petitioner and the other persons involved in that case might be discharged as sufficient evidence for their conviction could not be discovered during the investigation, with the result they were released from jail. Immediately thereafter, the petitioner was served with an order of detention under R. 30(1)(b) of the Defence of India Rules and taken into custody. One of the arguments was that the order of detention was vitiated by mala fides, particularly when it was made after the petitioner was in Jail for a considerable time as an undertrial prisoner and released as sufficient evidence was not available to proceed with the trial. That argument was rejected in the following words :-
"(7) The next contention on behalf of the petitioners is that the order is mala fide. The reason for this contention is that it was originally intended to prosecute the petitioners under S. 3 of the Official Secrets Act and when the authorities were unable to get sufficient evidence to obtain a conviction they decided to drop the criminal proceedings and to order the detention of the petitioners. This by itself is not sufficient to lead the inference that the action of the detaining authority was mala fide. It may every well be that the executive authorities felt that it was not possible to obtain a conviction for a particular offence under the Official Secrets Act; at the same time they might reasonably come to the conclusion that the activities of the petitioners which had been watched for over two years before the order of detention was passed were of such a nature as to justify the order of detention. We cannot infer merely from the fact that the authorities decided to drop the case under the Official Secrets Act and thereafter to order the detention of the petitioners under Rules that the order of detention was mala fide. As we have already said, it may not be possible to obtain a conviction for a particular offence; but the authorities may still be justified in ordering detention of a person in view of his past activities which will be of a wider range than the mere proof of a particular offence in a Court of law. We are not therefore prepared to hold that the orders of detention in these cases were mala fide."
24. A similar ruling was given in Borjahan Gorey v. State of West Bengal, . That was a case under the Maintenance of Internal Security Act (1971). The contention was that the grounds of detention fell within the purview of Sections 109 and 100 of the Code of Criminal Procedure and the petitioner should have been proceeded against under those sections rather than detained under the said Act. Rejecting the same, the Court said (Para 4, at p. 2257 of AIR) :-
"The preventive detention provided by the Act is apparently designed to deal urgently and effectively with the mere serious situation, inter alia, affecting the security of India and the maintenance of public order as contemplated by S. 3 of the Act. The liability of the detenu also to be tried for commission of an offence or to be proceeded against under Chapter VIII of the Code of Criminal Procedure which deals with prevention of less serious disturbances and requires execution of bonds on the basis of the acts disclosed in the grounds do not in any way as a matter of law affect or impinge upon the full operation of the Act. The reason is obvious. Judicial trial for punishing the accused for the commission of an offence as also preventive security proceedings in a Criminal Court against a person merely for keeping the peace or good behaviour under Chapter VIII of the Code of Criminal Procedure, we may appropriately point out, is a jurisdiction distinct from that of detention under the Act, which has in view, the object of preventing the detenu from acting in any manner prejudicial inter alia to the security of the State or maintenance of Public order. The fields of these two jurisdictions are not co-extensive nor are they alternative. The jurisdiction under the Act may be invoked when the available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repetition of past conduct which would be prejudicial inter alia to the security of the State or the maintenance of public order or even when the witnesses may be frightened or scared of coming to a Court and deposing about past acts on which the opinion of the authority concerned is based. This jurisdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction. The jurisdiction for trial or for prevention proceedings under Chapter VIII, Code of Criminal Procedure cannot be successfully invoked in such a situation."
25. The above two rulings were relied on by the Supreme Court in Mohd. Subrati v. State of West Bengal, . Quoting the above passages the Court said that the fact that the investigating agency did not put the petitioner on a regular trial for want of evidence cannot be a bar to his detention if the detaining authority under the Act is satisfied that it is necessary to make the order of preventive detention on the grounds contemplated by the Act.
26. In State of Gujarat v. Adam Kasam, , a case arising under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974), the Court held that the High Court had erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond a reasonable doubt into the law of detention and that under Art. 226 of the Constitution, the High Court could only see whether the order of detention had been passed on any material before it and cannot go further and examine whether the materials were adequate or not, which was the function of an appellate authority.
27. In A. K. Roy v. Union of India, , to which we have made a reference already in connection with another contention of the petitioner, while considering the question relating to the validity of Preventive Detention as a measure for regulating the liberties of the subject, the Court observed (Paras 34, 35) :
"34. There can be no doubt that personal liberty is a precious right. So did the founding fathers believe at any rate because, while their first object was to give unto the people a constitution whereby a Government was established, their second object, equally important, was to protect the people against the Government. That is why, while conferring extensive powers on the Government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights and the power to issue Ordinance, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessary to protect those rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people.
35. But, the liberty of the individual has to be subordinated, within reasonably bounds, to the good of the people."
Again in paragraph 99, the Court said :-
"In proceedings before the advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned. The detention, it must be remembered, is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated object. The proceeding of the advisory Board has therefore to be structured differently from the proceeding of judicial or quasi-judicial tribunals before which there is a lis to adjudicate upon."
28. There cannot be a clearer statement of law than the underlined portion in the above passage that the procedure in a preventive detention enactment has to be necessarily different from the procedure under the ordinary criminal law.
29. In Ashok Kumar v. Delhi Administration, , while dealing with a case arising under National Security Act, the Court observed (Para 14) :-
"Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing it. Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.
.. .. ..
It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not able to substantiate. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose."
30. In Shiv Ratan Makin v. Union of India, , quoting from the judgement in Mohd. Subrati's case, a portion of the passage referred to by us earlier, the Court said :-
"If the failure of the criminal prosecution can be bar to the making of an order of detention, a fortiori the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention.
31. The Full Bench of this Court had occasion to deal with a case under the Tamil Nadu Act (14 of 1982) in Suman v. The State of Tamil Nadu, 1986 Mad LW (Cri) 221 : (1986 Cri LJ 1662) (FB). The Court pointed out the nature of the jurisprudence of the detention and said that the order of detention is made by an Executive Authority not in the exercise of judicial or quasi-judicial power and that the normal rule of criminal jurisprudence of proof beyond reasonable doubt is not attracted. It was held that a confession cannot be excluded from consideration by the detaining authority, though it may not be evidence in a criminal proceeding.
32. In Poonam Late v. M. L. Wadhawan, the Supreme Court had to consider whether a person detained under the COFEPOSA Act could be released on parole, held that the Court had no power to substitute the period of detention either by abridging or enlarging it. In that connection, the Court pointed out that Preventive Detention Jurisprudence is very different from regular convictions and either under Art. 226 or under Art. 32 of the Constitution on India, the Court would have no jurisdiction to deal with the duration of the period of detention.
33. In K. Aruna Kumari v. Government of Andhra Pradesh, it was held that an admission contained in a statement recorded under S. 161, Code of Criminal Procedure, cannot be completely brushed aside for the purpose of preventive detention, though it cannot be used as substantive evidence against the accused in a criminal case. The Court also said that it cannot be invited to consider the propriety, sufficiency or the factual existence of the grounds on which the subjective satisfaction of the detaining authority is based and that the Court cannot substitute its own opinion for that of the authority.
34. In State of Punjab v. Sukhpal Singh, , a detention under the National Security Act was called in question. A contention was raised that the authority cannot resort to preventive detention without first prosecuting the detenu under the criminal law. Negativing the same, the Court observed (Paras 8, 9) :-
"A clear distinction has to be drawn between preventive detention in which anticipatory and precautionary action is taken to prevent the recurrence of apprehended events, and punitive detention under which the action is taken after the event has already happened. It is true that the ordinary criminal process of trial is not to be circumvented and short-circuited by apparently handy and easier resort to preventive detention. But the possibility of launching a criminal prosecution cannot be said to be an absolute bar to an order of preventive detention. Nor would it be correct to say that if such possibility is not present in the mind of the detaining authority the order of detention would necessarily be bad. The failure of the detaining authority to consider the desirability of launching a criminal prosecution before ordering preventive detention may in the circumstances of a case lead to the conclusion that the detaining authority had not applied its mind to the important question as to whether it was necessary to make an order of preventive detention but such is not the case here. In this regard one has to bear in mind the relevant facts and circumstances of a case including the time and place concerned.
.. .. ..
The question is whether a particular person is disposed to commit the prejudicial acts. The duty of deciding this question is thrown upon the State. The justification is suspicion or reasonable probability and not criminal charge which can only be warranted by legal evidence. It is true, that in a case in which the liberty of such person is concerned, we cannot go beyond natural construction of the statute. It is the duty of this Court to see that a law depriving the person of his liberty without the safeguards available even to a person charges with crime is strictly complied with. We have, however, to remember that individual liberty is allowed to be curtailed by an anticipatory action only in interest of what is enumerated in the statute.
9. In actual practice the grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in.
.. .. ..
What is to be seen is whether the detaining authority has applied its mind or not to the question whether it was necessary to make preventive detention.
.. .. ..
As we have already seen the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is precautionary power exercise reasonably in anticipation and may or may not relate to an offence. It cannot be considered to be a parallel proceeding. The anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may provide sufficient ground for detention. It cannot be said that the satisfaction of the detaining authority on the basis of his past activities that if the detenu were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of public order etc. shall not be based on adequate materials. Public safety ordinarily means security of the public or their freedom from danger.
.. .. ..
The High Court under Art. 226 and Supreme Court under Art. 32 or 136 do not sit in appeal from the order or preventive detention. But the Court is only to see whether the formality as enjoined by Art. 22(5) had been complied with by the detaining authority, and if so done, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detain the detenu. In other words, the Court cannot question the sufficiency of the grounds of detention for the subjective satisfaction of the authority as pointed out in Ashok Kumar v. Delhi Administrative, . Those who are responsible for the national security or for the maintenance of public order must be the Judges of what the national security or public order requires. Preventing detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. The justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measure even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. There is no reason why executive cannot take recourse to its powers of preventive detention in those cases where the executive is genuinely satisfied that no prosecution can possibly succeed against the detenu because he has influence over witnesses and against him to one is prepared to depose. However, pusillanimity on the part of the executive has to be deprecated and pusillanimous orders avoided.
.. .. ..
Again when grievous crime against the community was committed it would surely be subject to the penal law and stringent sentences, but at the same time it could be considered unsafe to allow him the opportunities to repeat prejudicial acts during the period the penal process was likely to take."
35. In Subbiah v. Commissioner of Police, Madras City, 1993 Mad LW (Cri) 113, following the rulings of the Supreme Court and the Full Bench of this Court in Suman's case, 1986 Mad LW (Cri) 221 : (1986 Cri LJ 1662), a Division Bench of this Court, to which two of us were parties, held that the only question to be considered by the Court when an order of detention is challenged is whether the materials were relevant in the matters to be decided by the detaining authority and whether they were proximate in time.
36. The Additional Public Prosecutor has also drawn our attention to the rulings of the Supreme Court in Radha Kishan v. State of U.P., ; Pooran Mal v. Director of Institution etc., ; Pratap Singh v. Director of Enforcement, F.E.R. Act, and Pushpadevi v. M. L. Wadhavan, and submitted that evidence obtained pursuant to an illegal search and seizure could be used in proceedings before the Court if it is relevant and that the Court is not concerned with how the evidence is obtained. According to him the detaining authority is therefore entitled to rely upon the evidence afforded by the report of the Chemical Analyst, even if there had been an illegality or irregularity in obtaining the same. It is not necessary for us to consider that aspect in this case.
37. Apart from the difference in the nature and scope between the jurisprudence of preventive detention and the penal jurisprudence pointed out in this judgement earlier, the above rulings also lay down that the failure to prosecute for offences alleged to have been committed or the likelihood of an acquittal if a prosecution is launched will not bar a preventive detention.
It is also held that evidence inadmissible in a criminal trial can be considered for deciding whether preventive detention is necessary in the case.
38. In the light of the above principles, if the question before us is considered, the only answer thereto is that there is no infirmity in the order of detention and the fact that both the bottles containing samples were sent to the Laboratory without adhering to the provisions contained in S. 32 of the Tamil Nadu Prohibition Act, does not vitiate in any manner the order of detention. The Division Bench has in Seetha's case 1993 Mad LW (Cri) 426 expressly held that the provisions of the Tamil Nadu Prohibition Act, 1937 and the Rules, Notifications and Orders made thereunder are all in-built under S. 2(b) of Act (14 of 1982) and the legislature has incorporated the provisions of the Tamil Nadu Prohibition Act within definition of 'bootlegger' under that section. We are unable to concur with that view. The definition of 'bootlegger' does not only refer to the provisions of the Tamil Nadu Prohibition Act, 1937 and the Rules etc. made thereunder but also the contravention of any other law for the time being in force. The reference to the Tamil Nadu Prohibition Act is made only for the purpose of finding out whether a person is carrying on activities in contravention of the provisions of that Act or the Rules made thereunder. Can it be said that the definition having referred to "any other law for the time being in force" incorporates the provisions of such law also ? Such a construction of the section would lead to a great anomaly. The section does not contemplate that the procedure prescribed in the Tamil Nadu Prohibition Act and the other laws should also be followed before an order of detention is made. It must be remembered that the purpose of S. 32 of the Tamil Nadu Prohibition Act is only to prove beyond doubt that the accused is guilty of the offence with which he is charged under the Act in accordance with the general rule in Criminal Jurisprudence. The failure to fulfill the requirements of S. 32 of the Tamil Nadu Prohibition Act may be defence if he is tried in the Criminal Case registered against him under the Tamil Nadu Prohibition Act. Even if it assumed for the purpose of this case that the prosecution under the Tamil Nadu Prohibition Act would fail and in acquittal of the accused therein, that will not bar the proceeding under the preventive detention enactment, viz., T.N. Act (14 of 1982). We notice that in H.C.P. No. 1225 of 1993 (Mani alias Velumani v. State of Tamil Nadu - Order dated 15-12-1993), a Division Bench of this Court, to which two of us were parties, has held that the detention order is not vitiated, though the detenu was acquitted in the ground case by the Assistant Sessions Judge on the Criminal Side. The principles enunciated above have been followed by the Bench, which has also referred to the relevant rulings of the Supreme Court. Hence, the circumstance that S. 32 of the Tamil Nadu Prohibition Act was not followed when samples were sent to the Laboratory is wholly irrelevant.
39. Moreover, the detenu in this case had been convicted in as many as seven cases under the provisions of the Tamil Nadu Prohibition Act, 1937. That will bring him within the definition of 'bootlegger' under S. 2(b) of Act 14 of 1982. The other question before the detaining authority is whether he is engaged or is making preparations for engaging in any of his activities as bootlegger, which affects adversely or are likely to affect adversely the maintenance of the public order. For the purpose of deciding that question and arriving at a subjective satisfaction, it is not necessary for the authorities to send one bottle of the sample to the laboratory and retain the other in the Court.
40. In the result, we hold that the ruling in Seetha's case 1993 Mad LW (Cri) 426 is not good law. The same is overruled. In view of our findings on the contentions raised by the petitioner this petition is dismissed.
41. Petition dismissed.