M AMBROSE Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) One Baby, a female aged 44, the mother of the petitioner was detained by an order dated 7.9.1984 under section 3(1) of the Tamil Nadu Act No.14 of 1982 on the ground that she is a bootlegger and that with a view to preventing her from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain her under the provisions of section 3 of the Act. While the third respondent, Inspector of Police was conducting a prohibition raid on 31.7.1984 one Perumal a businessman dealing with empty bottles appeared before him and stated that on 29.7.1984 he went to Madhavaram in connection with his empty bottle business and at that time he consumed two glass tumblars of I.D. arrack sold by the detenu. In a short time, he got a burning sensation in his eyes, vomitted and lost consciousness. He regained his consciousness only on 31.7.1984 morning. He requested the third respondent for necessary action against the detenu. On this information, the third respondent along with his party went to Madhavaram and found at about 2-30 p.m. the detenu selling I.D. arrack. The persons who were purchasing and consuming ran away. The third respondent seized the I.D. arrack in the possession of the detenu viz., a black plastic five litre can containing three litres of I.D. arrack, a glass tumbler smelling of I.D. arrack and sale proceeds of Rs.6.00. All these were seized under cover of mahazars. On the ground that the I.D. arrack was suspected to be spurious liquor not potable for human consumption, sample quantities were taken into two bottles according to the procedure prescribed and the remaining quantity was destroyed. The samples were sent for analysis. The laboratory report showed that the illicit distilled arrack contained among other things chloral hydrate, which is poisonous and injurious for human health. The detenu was charged in Crime No.970 of 1984 and investigation into this case is still pending. In the grounds of detention in addition to this Crime No.970 of 1984, six other instances are noticed in respect of the detenu as having come to the adverse notice. The first five of them are offences under section 4(1)(b) of the Tamil Nadu Prohibition Act and the last is under section 4(1)(i) of the Tamil Nadu Prohibition Act.

(2.) Two grounds are urged by Mr. Natarajan, learned Counsel for the petitioner. The first contention is that in at least the first five of the instances referred to in the grounds of detention, the Analyst's report relating to the samples of I.D. arrack seized had not been received to show that the arrack sold by the detenu contained chloral hydrate. It is the chloral hydrate found in the I.D. arrack that makes the I.D. arrack not potable for human consumption and becomes poisonous and it is that ground alone that could be considered to be a material lor coming to the conclusion that a case of maintenance of public order is also involved. Since in the first of the five instances it has not been disclosed that it contained chloral hydrate and since those five instances also have been taken into account for the purpose of detention, the entire order becomes vitiated. On the other hand, the learned Public Prosecutor contended that the instances referred to in the grounds of detention as having come for adverse notice are mentioned only for the purpose of coming to the conclusion that the detenu is a bootlegger and that all the material placed need not necessarily be evidence against the maintenance of public order or the need for taking action under the preventive detention provisions of Tamil Nadu Act No.14 of 1982, and that the material for coming to the conclusion that it is necessary to prevent the detenu from acting in any manner prejudicial to the maintenance of public order is furnished bythe fact that in the ground instance it is stated that she was selling I.D. arrack with chloral hydrate on 31.7.1984, as also the charge sheet filed in Crime No.883 of 1984 which is the sixth of the instances mentioned in the grounds of detention wherein also the I.D. arrack was found to contain chloral hydrate and they are the only material on which the detaining authority had considered whether action is called for under section 3 of the Tamil Nadu Act No.14 of 1982. There is great force in this argument of the learned Public Prosecutor. Under the Act, it is not enough if the detenu is a bootlegger or satisfy the definition of a bootlegger. In order to take action under the preventive detention provision of section 3 the detaining authority not only will have to find that the detenu is a bootlegger but also that the ordinary provisions of criminal law are not enough to deal with such a person on the ground that the maintenance of public order is involved and that it is necessary to detain him to prevent him in future from acting in any manner prejudicial to the maintenance of public order. Therefore, the detaining authority not only have to come to the conclusions that the detenu is a bootlegger but also he shall be of the view that in order to prevent him from acting in any manner prejudicial to the public order, the preventive detention provisions will have to be invoked. The material for both these aspects may be different or common. It is not necessary that in every case the material should be a common factor. Some material may satisfy the definition of bootlegger and may be relied on only for that purpose. The other material may be relevant for the purpose of considering whether preventive detention provisions will have to be invoked or the provisions of criminal law is sufficient to deal with the matter. Therefore, merely because the order of detention sets out both the material available i.e., those evidence regarding his being a bootlegger and also she is being considered as acting in any manner prejudicial to the maintenance of public order, it could not be said that the order itself is vitiated. It is true that the detaining authority has set out the facts in toto and has mentioned in paragraph 5 of the grounds of detention that 'From the above said materials. I am satisfied that Tmt. Baby, w/o (late) Munusamy as a bootlegger is selling I.D. arrack mixed with poisonous substance in contravention of the provisions of the Tamil Nadu Prohibition Act, 1937 and the Rules made thereunder, which is likely to cause widespread danger to life and public health. She is thereby acting in a manner prejudicial to the maintenance of public order.' The writing of an order is a matter of style. If the detaining authority had split these into two sentences and had stated that from the above materials it was satisfied that the said Baby was a bootlegger and again by another sentence stated that it was also satisfied that her selling I.D. arrack mixed with poisonous substance is likely to cause widespread danger to life and public health and thereby she was acting in a manner prejudicial to the maintenance of public order, it would have been a perfectly valid order. Merely because it is put together, we cannot say that the entirety of the material is relied on both for the purpose of finding the detenu as a bootlegger and also for the purpose of finding that the detenu was acting in a manner prejudicial to the maintenance of public order. We are therefore of the view even though the first five of the instances have not stated that the I.D. arrack seized contained chloral hydrate did not vitiate the order of detention itself and it will go only for satisfying that the detenu is a bootlegger. In fact, in the counter affidavit filed by the detaining authority he had specifically stated that he had relied on the instances mentioned in the order only for the limited purpose of showing that the detenu is a confirmed bootlegger and that only the activity of selling I.D. arrack containing chloral hydrate on 31.7.1984 was taken into account for the purpose of determining that it was necessary to detain her under the preventive detention provisions. This ground of attack is therefore not sustainable.

(3.) It was next contended by the learned Counsel that with reference to the instance mentioned as item 6 in the ground of detention though a charge sheet has been filed he had not been furnished with the documents and statements of witnesses relating to the same and that vitiates the entire order of detention. The learned Public Prosecutor in fact admitted that when a charge sheet had been filed the entire case diary relating to the same would have been sent to the detaining authority and once the entire case diary is sent to the detaining authority, the detaining authority is expected to have read the entire case diary. But the learned Public Prosecutor contended that only those documents which are material and which have been referred to and are relied on by the detaining authority in the grounds of detention need be furnished to the detenu and the Government is not bound to supply all the records relating to that case. The learned Public Prosecutor however conceded that the Analyst's report in respect of a prohibition case under section 4(1)(i) of the Tamil Nadu prohibition Act is a relevant document. It is now clear from item 13 which is the charge sheet in Crime No.883 of 1984 that the I.D. arrack seized was sent for Analyst's report and the report was received and therefore it would have formed part of the record itself. In the circumstances, therefore, if that analytical report had not been furnished to the detenu, we cannot hold that the detenu had been given sufficient opportunity of making her representation against the detention under Article 22 CO of the Constitution. Since the non-supply of the analytical report itself is enough to invalidate the order of detention,�it is not necessary for us to go into the other question whether he should have been supplied with the other statements recorded in this case. In fact, we have taken a similar view in the decision in In the matter of Mohamed Ali Jinnah etc., Mohamed Moosa v. The Collector and District Magistrate, Ramnad, (1984) L.W. (Crl.) 200. On this ground alone the order is liable to be set aside and accordingly we set aside the order and the respondents are directed to set the detenu at liberty forthwith.