SAROJA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) PETITIONER Saroja has filed this petition under Art. 226 of the Constitution of India for the issuance of a writ of habeas corpus for quashing the order of detention passed against her on 4. 2. 1994 by the District magistrate and Collector of North Arcot Ambedkar District, Vellore and to set her at liberty. The second respondent- Collector has passed the impugned detention order in exercise of the powers conferred in Sub-sec. (1) of Sec. 3 of Tamil Nadu Prevention of dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, immoral Traffic Offenders, Slum Grabbers Act 14 of 1982 read with G. O. Ms. No. 12, Prohibition and Excise Department, dated 18. 1. 1994 under Sub-sec. (2) of sec. 3 of the said Act with a view to preventing her from acting in any manner prejudicial to the maintenance of public order and health. The detenu came to the adverse notice of the second respondent as a Bootlegger in view of the eight cases referred to in the preamble of grounds of detention and she was detained on the basis of the ground case. As per the details set out in the grounds of detention the petitioner is stated to have sold I. D. arrack mixed with toxic principles of Datura. And the Analyst Report reveals that 5 mgms. of datura estimated as atropine was found in 100 ml. of the sample and as per the statement of medical officer the consumption of arrack mixed with such percentage of atropine may cause death depending upon the quantity consumed by the person.

(2.) THOUGH learned counsel for the petitioner challenged the impugned order on various grounds, he confined his arguments on the only ground that the I. D. arrack seized from the petitioner contained poisonous substance of 5 percentage only. And according to him this court has taken the view that the presence of atropine in liquor of more than 10 mg. in 100 milli-litres alone may be dangerous and atropine of lesser percentage may not pose a grave or widespread danger to life or public health. In support of his claim he placed reliance on Palanisami v. Secretary to Government, Prohibition and excise Department, I. L. R. (1994)2 Mad. 493. There the illicitly distilled arrack contained Datura equivalent to 5. 21% (w. v.) of atropine. The Division bench comprising of Mishra and Ali Mohamed, JJ. held: we are conscious that a bench of this Court in Dharman v. State of Tamil Nadu, W. P. No. 6737of 1988, dated 15. 2. 1989 and Pepisu alias Kanni v. State of Tamil Nadu. W. P. No. 9179 of 1990, dated 9. 11. 1990, has taken the view that for the purpose of detention of a person, who is a bootlegger it will be necessary to see, amongst other things, that the poisonous ingredients of the liquor sold by him or her was in such a quantity that it posed a grave or widespread danger to public life. In the said two cases, the court has held that presence of 10 milligrams percentage in hundred litres of liquor will not be dangerous to life or public health. In the instant case we have chosen to follow the authority in Dharman v. State of Tamil Nadu, W. P. No. 6737 of 1988, dated 9. 11. 1990. Their Lordships went on to observe: In Pambukaran alias Kamalessn v. State of Tamil Nadu, w. P. Nos. 11773 and 11774 of 1990, dated 10. 2. 1990, a Bench of this Court has expressed that in a proper case this Court will be required to reconsider the correctness of the above view, but for the reason of the stereo type of grounds, the narration of the incidents leading to the apprehension of the detenu by the police, the escape of the purchaser sighted at the time of arrest etc. , are such that the court may avoid going to the issue as to whether the view expressed in the aforementioned judgments requires a reconsideration and follow the same. In the instant case also, we propose to adopt the same approach. " so it cannot be said that the Division Bench concurred with the correctness of the view expressed in Dharman v. State of Tamil Nadu, W. P. No. 6737 of 1988, dated 15. 2. 1989.

(3.) ANOTHER Division Bench of this Court comprising of gupta and Thanikkachalam, JJ. , in Mrs. Amsa v. District Magistrate, Tricky and another, H. C. P. No. 2383 of 1993 dated 28. 6. 1994, had occasion to consider the validity of a detention order where also the I. D. arrack seized contained 5. 10 mg% w/v. The Chemical Examiner opined that atropine was a poisonous substance. And the detaining authority was satisfied that if the detenu was led to remain at large, he would indulge in future activities prejudicial to the maintenance of public order. It was submitted before the Division Bench on behalf of the detenu that the atropine substance bound in the alleged I. D. arrack was not fatal and could not have affected either the public health or public order under the Act. The Bench held that a combined reading of clause (a) and the explanation to Sec. 2 of Tamil Nadu Act 14 of 1982 would justify the conclusion that the activity of a bootlegger if it creates widespread danger to life or public health would be deemed to be the activity prejudicial to the maintenance of public order. And these provisions do not require the detaining authority to hold that arrack sold by a bootlegger contains fatal dose of poisonous substance or that only a fatal dose of poisonous substance can cause grave danger to life or widespread danger to public health. The requirement of the provisions of the Act in grave or widespread danger to life or public health. And therefore it is not necessary that the dose of poisonous substance in the arrack should be fatal.