LAKSHMI Vs. THE STATE OF TAMILNADU, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, FORT ST. GEORGE, MADRAS-9 AND

JUDGEMENT

(1.) THIS writ petition is filed by one Lakshmi wife of the detenu Rajamani under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus quashing the order of detention dated 12 -1 -1991 and set her husband at liberty. The detenu came to the adverse notice of the detaining authority as bootlegger in view of the six adverse cases referred to in the preamble of the grounds of detention and was detained on the basis of the ground case. The impugned order was passed by the District Collector and District Magistrate Pasumpon Thevar Thirumagan District, Sivagangai (second respondent herein) in exercise of the powers conferred by S.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 (Tamil Nadu Act 14 of 1982) with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The learned counsel for the petitioner, Mr. S. Subbiah though challenged the impugned order on various grounds, confined his argument to a sole ground, namely, though the analysis report of the Forest Department says about the presence of negligible percentage of atropine viz. 0.51 mg, the report does not say that the atropine present therein would cause the symptoms that were alleged to have been experienced by the complainant. Further, it is not shown that the poisonous substance present in the liquor was beyond the limit of consumption or beyond the limit of hazards which were dangerous to life and health. As such, the detenu cannot be termed as bootlegger under S.2(1)(a) of the Act relying on the decisions of this court in W.P.No.3967 of 1990 reported in 1990(2) M.W.N.Cr.82; W.P. No. 10526 of 1990 reported in 1991 (1) M.W.N. Cr.10 and W.P.No.18558 of 1990. In the counter -affidavit, it is only stated that if large quantity of atropine sulphate is mixed with illicitly distilled arrack, it may prove fatal when it is consumed by public. In this case, the samples taken from arrack sold by the detenu are found to contain 0.51 mg.% w/v of atropine sulphate in it by the Assistant Chemical Examiner to Government and Assistant Director, Regional Forensic Science Laboratory, Madurai. The Professor of Forensic Medicines and Police Surgeon, Madurai Medical College, Madurai has also opined that if the illicitly distilled arrack containing Datura is consumed, it may endanger life and that symptoms like chest pain, vomiting, blurring of vision and delirious state will also occur. The further opinion of the police surgeon is that if a susceptible person who is not in good health consumes illicitly distilled arrack mixed with lesser quantity of arrack mixed with 3 mg w/v of atropine, it may also prove fatal. It is to be noted that the percentage of atropine found in the contraband which was seized from the detenu is only 0.51 mg per cent w/v of Atropine sulphate in it. It is also found that the alleged victim who has consumed the arrack did not take any treatment; but he recovered to normalcy and he refused to take any treatment. The Professor of Forensic medicine only generally stated that if arrack mixed with atropine is consumed by a person it will produce the symptoms mentioned by him and that it may even prove fatal. He has not stated the required percentage of atropine which would cause danger to life. This court has taken an uniform view that in the absence of any such data, the detention is not sustainable. The case referred to by the learned counsel for the petitioner is also to the same effect. In Subban @ Subramani @ Subramanian v. State & Anr., 1991(1) M.W.N.(Cr)10 a Division Bench of this Court held in similar circumstances as follows:

(2.) A bootlegger cannot, by dint of his being a bootlegger alone be detained under the Act, unless his activities found to be prejudicial to the maintenance of Public Order.

(3.) IN the result, the writ petition is allowed, the order of detention is quashed and the detenu is directed to be set at liberty unless he is required in connection with any other cause.