S GANDHI Vs. STATE,

JUDGEMENT

(1.) THE petitioner has been put under preventive detention by order dated 29.10.1993 passed by the first respondent in exercise of powers under Section 3 of the Tamil Nadu Act 14 of 1982, hereinafter referred to as the 'Act', after recording the satisfaction that the petitioner was a boot -legger and engaged in activities prejudicial to the maintenance of public health. The legal and constitutional validity of this order is under challenge in this writ petition filed under Article 226 of the Constitution of India.

(2.) FROM the grounds of detention supplied to the petitioner it appears that on 20.10.1993 one Kaliappan lodged a report with the Inspector of Police, Kurisilapet police station to the effect that he was in the habit of consuming liquor and on 19.10.1993 at 6 P.M. he purchased one tumbler of I.D. arrack from the petitioner for Rs. 5/ -. After consuming the said liquor he felt burning sensation in the stomach and vomitted twice. He also felt burning sensation of his eyes and blurring of vision. He somehow reached his home and remained on bed. He also reported that he has been a regular consumer of liquor but never felt anything of the type in the past. He, therefore, suspected that the liquor contains some poisonous substance. The Inspector of Police and his party reached the spot and found the petitioner with 5 litres black colour plastic can. He also found the petitioner pouring liquor from the said can into a glass tumbler and giving to an unknown person for money. The police party seized the can and arrested the petitioner in the presence of two witnesses including the complainant. The petitioner gave confessional statements in which he allegedly admitted that he was engaged in regularly selling I.D. arrack. Two samples of I.D. arrack were prepared and properly sealed. The Chemical analysis of one of the samples indicated that it contained 165.0 mg. w/v of chloral hydrate which was a poisonous substance. Thereafter an offence under Section 4 of the Tamil Nadu Prohibition Act was registered against the petitioner and he was produced before the Judicial Magistrate No. III, Tiruppattur who remanded him to judicial custody in the sub jail, Tiruppattur. Dr. Jaffar Sadhir, Civil Assistant Surgeon, Government Hospital, Tiruppattur was also examined during investigation to ascertain the nature of the attrack. According to the doctor, chloral hydrate is a poisonous substance and if it is mixed even in a small dose would cause giddiness, irritation in eyes, vomitting and may affect liver, kidneys, heart and the nervous system. The material collected during the investigation was produced for consideration of the Detaining Authority and recording its subjective satisfaction about the grounds of preventive detention. The Detaining Authority was satisfied that the petitioner was a boot -legger within the meaning of the Act and also that his activities posed grave danger to the life of the complainant and were otherwise causing widespread danger to public health. This is how the impugned order has been passed and challenged in this writ petition under Article 226 of the Constitution of India.

(3.) THE impugned order has been challenged as illegal and unconstitutional on several grounds including the grounds that the petitioner's representation did not receive fair and independent consideration by the respondents, and, therefore, the impugned order is illegal. A perusal of the original file indicates that the matter was referred to the opinion of the Advisory Board, which met on 4.12.1993 and opined that there was sufficient material to confirm the detention of the petitioner. The representation of the detenu had not reached the Government and could not for that reason be placed before the Advisory Board. The Advisory Board, therefore, did not get an opportunity to consider the case in the context of submissions of the petitioner. The representation was, however, received by the Government on 13.12.1993 and sent to the District Magistrate and police authorities for their parawise remarks on 14.12.1993. In the meantime the opinion of the Advisory Board was received and hence the respondents - Government confirmed the detention od 20.12.1993. It may be mentioned that on 20.12.1993 the representation of the petitioner was with the Government but was not considered presumably because of the parawise remarks of the District Magistrate had not bel received. Apparently, therefore, the detention was confirmed without considering the representation of the petitioner. This, according to the learned counsel for the petitioner, is the reason for the detention having become constitutionally invalid. The learned Public Prosecutor, however, submitted, that parawise remarks from the District Magistrate was received by the Government on 10.1.1991 and thereafter the matter was reconsidered and the representation of the petitioner was rejected on 17.1.1994. It is also submitted that since the representation has been disposed of within about 26 days of its receipt by the Government, there is no delay in its consideration. It is, however, claimed that it was not necessary for the respondents -Government to consider the representation of the petitioner at the time of confirmation of the detention order on 20.12.1993. The impugned order is, therefore, claimed to be constitutionally valid.