Duraisamy vs The District Magistrate and Collector of Tiruchirapalli and another

Arunachalam, J.—Petitioner Duraisamy has been detained as a ''bootlegger'' under Tamil Nadu Act 14 of 1982, in pursuance of an order of detention dated 21.12.1993 passed by the first Respondent, District Magistrate and Collector, Tiruchirapalli, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and public health.

Petitioner had come to adverse notice in seven prior crimes registered by Kairulabath police Station, Tiruchirapalli under Sections 4(1)(a) and 4(l)(i) of Tamil Nadu Prohibition Act, crime period ranging between July, 1992 and May, 1993. In all the adverse cases, except two, Petitioner was sentenced to pay a fine, which he did. The other two cases were pending trial before Judicial Magistrate, Ariyalur.

While so, during a prohibition raid organised by Kairulabath Police Station on 30.11.1993 at 7 p.m. they found the detenu selling illicitly distilled arrack to an unknown person, after obtaining money. On seeing the police party, the buyer of arrack look to his heels. Detenu was arrested. Arrack seized from him, on chemical analysis, was found to contain poisonous atropine. Judicial remand of arrested detenu was obtained. After follow up action, the impugned order was passed.

Mr. A.K.S. Thahir, learned Counsel appearing on behalf of the Petitioner urged a few grounds to have the impugned order set aside. On all the above grounds, we have heard Mr. S. Shanmughavelayudham, learned Additional Public Prosecutor.

The first contention was that representation dated 15.12.1993 forwarded by the detenu, even prior to the passing of the impugned order had not been disposed of expeditiously and on that sole ground, the impugned order must be viced. Learned Additional Public Prosecutor stated that a representation from the detenu was received by the Chief Minister''s cell on 14.12.1993, and a copy of the same was marked to the Secretary, Prohibition and Excise Department, Government of Tamil Nadu para-war remarks were called for on 16.12.1993, on receipt of which on 13.1.1994 quick action was taken, leading to disposal of this representation on 20.1.1994. Learned Additional Public Prosecutor pointed out that this representation could not be elevated to the pedestal of a post detention representation, though this representation also should be considered diligently in an expeditious manner. We are inclined to agree with the learned Additional Public Prosecutor that post detention representation will certainly stand on a different footing than a pre-detention representation. Even on this representation quick action had been taken by the State Government.

It was strenuously contended by Petitioner''s counsel that communication of rejection of this representation was served only on 15.2.1994 and on the sole ground of delayed service, impugned order must be quashed. We are unable to agree, since, as stated earlier, all grounds urged at the pre-detention stage have been considered properly and rejected and communication is only in pursuance of that rejection and delay in that process cannot be held to have prejudicially affected the detenu. This ground is rejected.

The second submission was that a representation dated 16.2.1994 forwarded to the Advisory Board had not been disposed of by the Government. The detention file was placed before us. This representation was received by the Advisory Board on 19.2.1994, nearly a month after its deliberation stood terminated on 22.1.1994. According to learned Additional Public Prosecutor, the representation was never received by the State Government. If after the meeting of the Advisory Board is over, detenu is interested in forwarding a representation, obviously it must be for revocation u/s 14 of the Act, which must be duly forwarded to the State Government for action. Admittedly, that was not done. We do not find any strength on this ground.

It was then submitted that in the grounds of detention, Detaining Authority has stated that during the course of investigation, Inspector of Police, Ariyalur, had enquired Dr. M.K. Ganesan, who has given a certificate to the effect that atropine was a poison etc. The argument was that the statement of Dr. Ganesan had not been supplied to the detenu. It is not as though any such statement was relied upon by the Detaining Authority. That portion of the ground extracted above shows that an oral enquiry was made and the Civil Surgeon had issued a certificate to the effect that atropine was poison etc. The result of the enquiry was issue of a certificate. This certificate has been furnished to the detenu. It is only on this certificate reliance was placed upon. There will be no meaning on asking for a document, not relied upon without expatiating the prejudice that had resulted to the detenu on that score. This ground is also rejected.

The next contention was that though conditional bail was ordered in the ground crime and the Detaining Authority had also furnished to the detenu a copy of the conditional bail order, he had not chosen to supply a copy of the bail petition and this was a grave lacuna. Petitioner''s counsel submitted that in view of the law laid down by the Supreme Court in Abdul Sathar Ibrahim Manik''s case (1992 (Crl) S.C.C. 1) , importance of a bail petition cannot be brushed aside. We directed learned Additional Public Prosecutor to place before us a copy of the bail petition. The copy produced before us, shows that the averments therein are totally innocuous. This application states that the detenu was not at all concerned with the offence and that he was willing to obey the orders and conditions imposed by the court and was further willing to furnish sufficient sureties to the satisfaction of the concerned court. Though it cannot be gainsaid that if the contents of the bail application had details, which could have affected the arrival of subjective satisfaction of the Detaining Authority either way, on the basis of the law laid down in Abdul Sathar Ibrahim Manik''s case. (1992 (Crl.)S.C.C. 1) a copy of the bail application should also been certainly supplied to the detenu. However, in cases where informal bail petition, without any worthwhile details, which could not have affected the arrival of subjective satisfaction of the Detaining Authority either way, stood filed, it will be odd to plead for quashing of a preventive order only on the ground of non-supply of such an innocuous petition. In the arena of preventive law, Supreme Court has already introduced the concept of prejudice in a case of a detailed bail application in the event of it not supplied, it may be possible to presume prejudice. But in a case of " a matter of fact bail petition", without any details, non furnishing of the same cannot normally cause any prejudice to the case of the detenu. On the facts available, in the instant case, we are satisfied that non-supply of a copy of the bail petition, which is so vague as vagueness could be, detenu cannot claim violation of any right guaranteed to him under the Constitution. This ground is also rejected.

The next submission was that modification of bail conditions, a later event, was not informed to the detenu. There is no merit in this contention for, be it on bail on condition or total relaxation, Petitioner was enjoying liberty and in the later case it was more pronounced. Detaining Authority has certainly stated that he was aware that the Petitioner was enjoying liberty and still there was need to pass the impugned order. This ground has no force whatever and will have to necessarily fail.

The last submission was that family members of the detenu had not been informed immediately about the arrest of the Petitioner in pursuance of this preventive order and the jail in which he stood confined. We find that even on 31.12.1993, within ten days of the passing of the impugned order, wife and brother of the detenu was informed of these twin facts. No other ground was urged.

This habeas corpus petition, which has no merit, shall stand dismissed.