IN THE MATTER OF THE DETENU, P. GANDHI, A. VELLANAI PANDIAN Vs. COLLECTOR AND DISTRICT MAGISTRATE OF TIRUNELVELI DISTRICT AND

JUDGEMENT

(1.) THIS petition, filed by one Vellanai Pandian, is for the issue of a writ of habeas corpus for quashing the order of detention dated 10th December, 1982 passed by the first respondent against the petitioner's cousin, P. Gandhi, the detenu herein, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act XIV of 1982) (hereinafter referred to as the Act) read with the orders issued by the Government in G.O.MS. 25, Prohibition and Excise Department dated 18th January, 1982, as amended by sub -S.(2) of S. 3 of the Act, and confirmed by the second respondent as per order by G.O.MS. 58 dated 27th January, 1983, in which it was directed that the detenue be kept in detention for a period of twelve months from the date of his detention.

(2.) THE ground on which the impugned order is based is that the Inspector of Police, Prohibition and Enforcement Wing, Tirunelveli, with his party, while conducting a prohibition raid at Ullar, on 24th October, 1982 at about 11 a.m., found the detenu coming near a hillock known as Karuvattuppari carrying a plastic can which, on a check, was found to contain 15 litres of illicit distilled arrack, that the can was seized and the detenu was arrested and that a case in P.E.W. Crime No. 3130/82 under S. 4(1)(a) of the Tamil Nadu Prohibition Act was registered. Two samples of 500 ml. of arrack were taken. One of the sample bottles sent to the Assistant Director and Assistant Chemical Examiner, Regional Foronsic Laboratory, Tirunelveli, on analysis, was detected to contain atropine, a toxic element of datura. That apart, the Inspector examined two persons, viz., (1) one Panneer, and (2) one S. Gurusami Pandian, both of Royagiri, who stated that they purchased spurious arrack from the detenu on 15th October, 1982 and 20th October, 1982 respectively and that both of them, after consuming the said arrack, experienced irritation in their throats, vomiting and purging, followed by blurring of vision, and that they had their treatment locally and they could not attend to their normal work. The Inspector also examined the Tutor in Forensic Medicine of the Tirunelveli Medical College Hospital, who has opined that the consumption of arrack mixed with datura could affect the human system and that if one consumes large quantities, it is likely to cause death in the ordinary course of nature if no treatment is available. The first respondent, being satisfied, on the basis of the above material, that the detenu was engaged in selling illicit liquor which is likely to cause widespread danger to life and public health, passed the impugned order of detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The copy of the order of detention was served on the detenu on 13th December, 1982 along with the grounds of detention and other materials. The Government, on receipt of the detailed report of the first respondent dated 13th December, 1982 as required under S. 3(3) of the Act, along with the grounds of detention and other materials, approved the order of detention on 20th December, 1982 and a copy of the same was served on the detenu on 23rd December, 1982 under acknowledgment. Meanwhile, the detenu made his representation dated 16th December, 1982, which was received by the Government on 23rd December, 1982. The case was referred to the Advisory Board on 22nd December, 1982. A copy of the representation of the detenu was forwarded to the Advisory Board on 23rd December, 1982 itself, on which date the Government received it. The para -wise remarks of the first respondent on the representation of the detenu were called for on 23rd December, 1982 itself. On 5th January, 1983 the first respondent sent his para -with remarks to the second respondent which thereafter rejected the representation of the detenu on 17th January, 1983. The Advisory Board considered the case of the detenu on 18th January, 1983 and after considering all the materials and the writ ten and oral representations of the detenu, was unanimously of the opinion that there was sufficient cause for the detention of" the detenu. The Government, after carefully considering the opinion of the Advisory Board and also independently considering all the materials, arrived at the conclusion that the detention order deserved to be confirmed and accordingly confirmed the order an J directed the detenu to be detained for a period of twelve months from the date of his detention, by order dated 27th January, 1983 which order was served on the detenu on 31st January 1983, under acknowledgment.

(3.) IN answering the first contention, the learned Public Prosecutor would submit that there is no bar for the detaining authority to take into consideration the statements of Panneer and Guruswami Pandian in a proceeding under the provisions of the Act and it cannot be said that those statements are inadmissible in this proceeding. In support of his contention, reliance was placed on the decision of the Supreme Court in Khatri v. State of Bihar : A.I.R. 1981 S.C. 1068 wherein a similar question arose as to whether the consideration of the statements recorded by a police officer and produced in a proceeding in a writ petition, is hit by S. 162, Crl.P.C , and their Lordships have ruled thus: