Saroja vs The State of Tamil Nadu and 2 others

Thangamani, J.—Petitioner Saroja has filed this petition under Article 226 of the Constitution of Indian for the issuance of a Writ of Hebeas

Corpus for quashing the order of the 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-section (1) of Section 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-section (2) of Section 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.

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 milliliters 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) Mad. 493: 1994 2 L.W. (Crl.) 535). 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. 6737 of 1988, order dated 15.2.1989) and Pepisu Alias Kannai v. State of Tamil Nadu

(W.P. No. 9179 of 1990, Order dated 9.1.1990) 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. 6737/88 dated 9.11.90)"". Their Lordships went on to observe: ""In Pambukaran Alias Kamalesan v. State of Tamil Nadu (W.P. Nos. 11773

and 11774 of 1990, Order 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

detenue 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, Order dated 15.2.1989).

In a later decision dated 3.3.1994 in H.C.P. No. 354 of 1994 (Karadi v. State of Tamil Nadu: 1994 2 L.W. (Crl.) 577) cited by learned

Additional Public Prosecutor the Chemical Examiner''s report revealed that the sample among other things contained atropine of 1.5. mg. w/v and

the Medical Officer had given a certificate to the effect that if any person consumes illicitly distilled arrack mixed with atropine of 0.64 mg. w/v and

above, he will develop giddiness, vomiting, congestion of eye lids and respiratory failure, which if not treated vigorously would result in death due

to atropine poisoning. It was submitted before the Division Bench that the sample containing 1.5 mg.% w./v. of atropine was not dangerous to

health And the earlier Division Bench Judgments in H.C.P. No. 1590 of 1993 (Rasu Alias Ramasamy v. State of Tamil Nadu), Dharman v. State

of Tamil Nadu (W.P. No. 6737 of 1988), Pepsu Alias Kanni v. State of Tamil Nadu (W.P. No. 9179 of 1990) and Pambukaran Alias

Kamalesan v. State Tamil Nadu (W.P. Nos. 11773 and 11774 of 1990) were sought) to be relied on by the Petitioner before the Division Bench.

After considering these four judgments, Srinivasan and Abdul Hadi, JJ. held that they do not lay down any proposition of law that whoever the

atropine substance found in the illicitly distilled arrack is less than any particular quantity, an order of detention should not be made by the Detaining

Authority. And their Lordships pointed out that in each case, the question is whether the materials before the Detaining Authority were relevant for

his considering whether the detention of the person concerned is necessary. And the text books say that individual sensitivity to the toxic effects of

atropine varies widely. In some cases, small dosage of atropine will even lead to fatalities. If a poisonous substance is mixed with arrack and sold,

how can it be said that it is not likely to affect public health. So, the above said four cases which were also cited before us are of no avail to the

Petitioner. And this Bench decision being subsequent to that of In Re Palanisami (I.L.R. (1994) Mad 493: 1994 2 L.W. (Crl.) 535) commands

more respect.

Learned Additional Public Prosecutor also brought to our notice the judgment of the Apex Court in Rajendrakumar Natvarlal Shah Vs. State of

Gujarat and Others, In that case there was no sale of liquor or arrack. The immediate and proximate cause for the detention there was the detenu

transported in bulk of Indian made foreign liquor from merchants in the State of Rajasthan intended and meant for delivery to persons indulged in

anti-social activities by doing illicit business of foreign liquor in the State of Gujarat. The detenu assailed the detention order on the ground that the

Detaining Authority has failed to record his subjective satisfaction as required under Sub-section (2) of Section 3 of Gujarat Prevention of

Antisocial Activities Act, 1985 that the importation of foreign liquor was likely to affect public health of the citizens of Gujarat. After extracting the

abovesaid Section in the Gujarat Act and the Explanation thereto, the language whereof is almost identified with that in the Tamil Nadu Act 14 of

1982, the Supreme Court upheld the order of detention passed by the District Magistrate saying that the authority has recorded his subjective

satisfaction in passing the impugned order and that the Explanation attached to Sub-section (4) of Section 3 of the said Act gives an enlarged

meaning to the words ""acting in any manner prejudicial to the maintenance of public order."" Though the Apex Court was not in this case faced with

the question whether the atropine content of I.D. arrack was required to be fatal to make the activity prejudicial to the maintenance of the public

order, it clarified that boot-legging activity has to be considered in the context of Explanation attached to the provision and presumed to be causing

widespread danger to the public health and public order. And this case is therefore ah authority for the proposition that even illicit liquor traffic

which is covered by the definition of bootlegger is enough to justify an order of preventive detention under Gujarat Act.

Learned Counsel for the Petitioner next cited before us these decisions: Thangam v. Commissioner and Secretary to Government of Tamil Nadu

(1989 L.W.(Crl.) 173) , Cherian v. State of Tamil Nadu (1989 L.W. (Crl.) 527) Shanmugham v. District Magistrate and Collector, Trichirapalli

(1990 L.W. (Crl.) 355, Chelladurai Nadar v. State of Tamil Nadu, 1991 1 L.W. (Crl.) 502) and Rajendran v. State of Tamil Nadu (1992 L.W.

(Crl.) 147) . Of these the first two were rendered by the Bench to which one of us (Janarthanam, J.) was a party. In the first case there was

nothing to show that the percentage of poisonous substance content therein would constitute a grave danger to public health, within the meaning of

the definition under the Act. In the second case, the opinion of the Doctor who was consulted was only to the effect that the I.D. arrack mixed with

Chloral hydrate was injurious to health and human life. In the third case the report of the scientific officer of the Forensic Department stated that

only the toxic principles of Datura present in the contents of the sample. The medical officer has not stated the percentage of the poisonous

substance in the sample which has been taken from the detenu. In the fourth case the medical officer has not stated that the arrack sold would

cause danger to human life. And in the last case, even according to the counter affidavit the percentage of atropine present in the sample was not

sufficient to cause widespread danger to life or health. For what all was stated was that if only much quantity was consumed that would cause

danger. So, to a certain extent the facts in the decisions cited above are distinguishable from the present one. In any event, if these decisions are to

be understood as laying down the law, they would run counter to the ratio laid down by the Supreme Court in Rajendrakumar Natvarlal Shah Vs.

State of Gujarat and Others, and therefore not good law.

In Lakshmi v. District Magistrate and Anr. (W.P. No. 2706 of 1990, Order dated 13.8.1990). Gopal the son of the Petitioner was detained as

a bootlegger u/s 3(1) of the Act 14 of 1982 on the allegation that the detenu was found selling I.D. arrack mixed with Chloral Hydrate which is a

poisonous substance. The Analyst''s Report disclosed that the percentage of Chloral Hydrate found in the illicitly distilled arrack was 0.23% m/v. It

was argued before the Division Bench consisting of Bel-lie and Swamidurai, JJ. that as per the text book of H.M.V. Cox''s Medical Jurisprudence

and Toxicology for chloral hydrate to be fatal it must be 5 grams and therefore consumption of such as 2174 ml. of I.D. arrack is required to make

the dose fatal. Since this is not humanly possible; the I.D. arrack sold by the detenu cannot be said to be dangerous to human life to attract the

provisions of the Act 14 of 1982. The Division Bench repelled this contention and held that chloral hydrate content in the I.D. arrack need not

necessarily be so high that would cause death to consumer of arrack. Act 14 of 1982 nowhere states so. There is absolutely no point in saying that

if only I.D. arrack sold by the detenu because of its content of chloral hydrate is fatal to life, the activity of the detenu can be said to be prejudicial

to the maintenance of the public order. The Bench pointed out that according to the Chemical Examiner''s report, chloral hydrate is a poisonous

substance and the Doctor who has been examined by the investigating Officer had given his opinion that consumption of I.D. arrack mixed with

chloral hydrate causes irritation in eyes, dryness in tongue, vomitation and giddiness and danger to liver, kidney and heart and it may cause death.

Hence there is no gain saying that consumption of arrack containing chloral hydrate a poisonous substance whatever may be its percentage is

dangerous to life or public health. When the percentage of chloral hydrate content is low, it may not cause immediate death, but repetition of

consumption will certainly cause danger to life. And ultimately the Bench held that selling of I.D. arrack mixed with poisonous substance of chloral

hydrate was gravely deleterious to life and public health. And the detention order was valid.

Another Division Bench of the Court comprising of Gupta and Thanik-kachalam, JJ. in Mrs. Amsa v. District Magistrate, Tricky and Anr.

(Order dated 28.6.1994 in H.C.P. No. 2383 of 1993: 1994 (2) L.W. (Crl.) 389) 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 Section 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 provision of the Act is 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.

We are in respectful agreement with the view expressed by the Division Bench in Karadi v. State of Tamil Nadu (H.C.P. No. 354 of 1994)

Lakshmi v. District Magistrate and Anr. (W.P. No. 2706 of 1990: 1994 (2) L.W. (Crl.) 577) and Amsa v. District Magistrate, Trichy (H.C.P.

No. 2383 of 1993: 1994 (2) L.W. (Crl.) 389). And we have no doubt in our mind that the poisonous substance mixed with I.D. arrack sold does

not have to be fatal to life in order to justify the action under Act 14 of 1982. u/s 3(1) of Act 14 of 1982, once State Government is satisfied with

respect to any bootlegger that with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order, it is

necessary so to do, make an order directing that such person be detained. And in the case of a bootlegger as per Section 2(a), the expression

acting in any manner prejudicial to the maintenance of public order"" means, his activities affect adversely, or are likely to affect adversely, the

maintenance of public order. And the Explanation to Section 2(a) of the Act states that public order shall be deemed to have been affected

adversely, or inter alia, if any to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this Clause (a) directly or

indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or

a grave or widespread danger to life or public health or ecological system. And on the ratio laid down by the Supreme Court in Rajendrakumar

Natvarlal Shah Vs. State of Gujarat and Others, the bootlegging activity has to be considered in the context of this Explanation. So, ""grave or

widespread danger to life or public health"" does not necessarily mean causing death. Hear the Chemical Analyst''s report discloses that the

percentage of toxic principles of Datura as atropine content in the I.D. arrack was 5. And the medical officer has given a statement to the effect

that consumption of I.D. arrack mixed with atropine of 5 mgms. in 10 ml. may cause death depending upon the quality consumed by the person

and signs and symptoms experienced by the complainant after he consumed I.D. arrack purchased from the detenu are usually seen in cases of

poisoning due to atropine. And it can definitely be said that the sale of I.D. arrack with atropine content is atleast likely to cause grave or

widespread danger to life or public health. So we find no infirmity in the subjective satisfaction arrived at by the detaining authority from the

materials placed before him.

In the result, the Petition is dismissed.