Judgment :- Swamidurai, J. The petitioners in all these cases were treated as Bootleggers as defined under Sec.2 (b) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders and Slum Grabbers Act, 1982 (Act 14 of 1982) (hereinafter referred to as ‘the Act’) and they were all detained under Sec.3(1) of the Act for a period of one year from the date of detention. 2. The petitioners have challenged the order of detention on various grounds, inter alia that the detaining authority has not considered the fact that the sponsoring authority has taken sample of arrack in only one bottle or in two bottles and sent one or both the bottles as the case may be to the Forensic Science Laboratory for analysis and report. It is disputed that the sponsoring authority has received the report from the Forensic Science Laboratory and submitted the same to the detaining authority for his subjective satisfaction. In all these cases, the detaining authority has received the report from the Forensic Science Laboratory and on his subjective satisfaction, he passed the order of detention. The petitioners in all these cases, have challenged the legality of taking of the sample in one bottle in some cases and in some other cases in two bottles but sending both analysis and the receipt of the report from the Forensic Science Laboratory. According to the petitioners, the sponsoring authority should take sample in two bottles and send the same to the Magistrate’s court and who in turn shall send one such sample to the analyst for his report and the other sample retained in the Magistrate’s court should be made available for test by the laboratory if and when the other sample sent to the Forensic Science Laboratory is challenged later on by the detenu. In all these cases, the sample taken in one bottle or in two bottles were sent to the Forensic Science Laboratory and no sample was left in the Magistrate’s Court for test if the sample already sent to the Forensic Science Laboratory is challenged later on. In all these cases, the sample taken in one bottle or in two bottles were sent to the Forensic Science Laboratory and no sample was left in the Magistrate’s Court for test if the sample already sent to the Forensic Science Laboratory is challenged later on. We have taken a decision in a large number of cases that the sponsoring authority has to take sample at least in two bottles and send one such bottle to Forensic Science Laboratory for test and the other bottle has to be kept in the court so that the detenu if he would require to challenge the sample bottle sent to the chemical analyst and his report, the other sample bottle kept in the court could be taken for test by the laboratory subsequently. If that procedure is not followed, we have held in a large number of cases that the procedure followed by the sponsoring authority and accepted by the detaining authority is not correct and legal and therefore, we have quashed the order of detention in those cases and directed release of those detenues from detention. We have also held in those cases that the detention order is illegal. 3. Learned Additional Public Prosecutor who did not demur to our earlier view, now submits that the view taken by us as stated above is not a correct view. He wanted the matter to be argued at length and so we gave opportunity to both the learned counsel appearing for the petitioners on one side and also the learned Additional Public Prosecutor on the other side and we heard the arguments advanced by. both the learned counsels on either side in all these cases. Before passing an order of detention under Sec.3(1) or 3(2) of the Act, the person concerned should be a bootlegger within the definition of Sec.2(a)(i) and also Sec.2(b) of the Act. Sec.2(a)(i) of the Act reads as follows: "2. Definitions: In this Act, unless the context otherwise requires- (a)‘acting in any manner prejudicial to the maintenance of public order", means (i) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order". Definitions: In this Act, unless the context otherwise requires- (a)‘acting in any manner prejudicial to the maintenance of public order", means (i) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order". Sec.2(b) of the Act reads as follows: "(b) "bootlegger" means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Tamil Nadu Prohibition Act, 1937 (Tamil Nadu Act X of 1937) and the rules, notifications and orders made thereunder, or in contravention of any other law for the time being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance of support of doing of any of the above mentioned things by or through any other person or who abets in any other manner the doing of any such thing". Sec.2(c) of the Act reads as follows: “(c)‘detention order’ means an order made under Sec.3”. Sec. 2(d) of the Act reads as follows: “(d) ‘detenu’ means a person detained under a detention order”. Sec.3 of the Act reads as follows: “3. Power to make orders detaining certain persons: (1) The State Government may, if satisfied with respect to any bootlegger or drug offender of forest offender or Goonda or Immoral Traffic Offender or Slum Grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary to do so, make an order directing that such person be detained. (2) If, having regard to the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-sec.(1), exercise the powers conferred by the said sub section: Provided that the period specified in the order made by the State Government under this subsection shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. .(3) When any order is made under this section by an officer mentioned in Sub-sec.(2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars, in his opinion, have a bearing on the matter, and on such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government”. 4. Mr.P.Venkatasubramanian, learned counsel for the petitioners in H.C.P.Nos.545 of 1992 and 714 of 1993 submitted that as per definition of Sec.2(b) of the Act, ‘bootlegger’ means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Tamil Nadu Prohibition Act, 1937 (Tamilnadu Act X of 1937) and the rules, notifications and orders made thereunder, or in contravention of any other law for the time being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance of support of the doing of any of the above mentioned things by or through any other person, or who abets in any other manner the doing of any such thing. Therefore, Mr.P.Venkatasubramanian, learned counsel submitted that before a person can be termed as a ‘bootlegger’, he must have contravened any of the provisions of Tamilnadu Prohibition Act, 1937 by doing any act like distilling, manufacturing, storing, etc. as per the provisions of the Tamil Nadu Act 1937 and the rules, notifications of any other law for the time being in force. Therefore, the detaining authority has to find that the person has contravened any of the provisions of the Tamil Nadu Prohibition Act 1937 and thereby such contravention has come within the definition of Sec.2(b) of the Act. Therefore, to pass an order of detention under Sec.3 of the Act, the person has to become a bootlegger and before he becomes a bootlegger, he should have contravened any of the provisions of the Tamil Nadu Prohibition Act, 1937. 5. The Tamil Nadu Act 10 of 1937 received the assent of the Governor on the 1st October, 1937. The object of the Act reads, “it was the intention of the legislature to curb the production, possession and use of liquor or intoxicating drug for all purposes other than medicinal, scientific, industrial or such like purposes and it is made abundantly clear in the preamble to the Act”. As per Sec.3(l-A) of TNP Act, ‘Bottle’ means to transfer liquor from a cask or other vessel to a bottle, jar, flask or pot or similar receptacle for the purpose of sale whether any process of manufacture be employed or not and includes rebottling. As per Sec.3(9) of TNP Act, ‘liquor’ includes toddy, arrack, spirits of wine denatured spirits, wine, beer and all liquid consisting of or containing alcohol. Sec.32 of TNP Act contains the relevant provisions to take samples of the liquor seized from the accused and sending the same for chemical analysis. It is for the prosecution to prove that the article seized is liquor and the Court cannot take upon itself the role of prosecution and conclude the nature of the contents of the article seized by smelling the same. Sec.32 of TNP Act deals with the arrest of offenders and seizure of contraband liquor and articles without warrant. Sec.32 of TNP Act reads as follows: “Sec.32. Sec.32 of TNP Act deals with the arrest of offenders and seizure of contraband liquor and articles without warrant. Sec.32 of TNP Act reads as follows: “Sec.32. Arrest of offenders and seizure of contraband liquor and articles without warrant: Any prohibition officer, any officer of the Police or Land Revenue Department, and any other person authorised in that behalf- .(a) May arrest without warrant any person found committing an offence punishable under Sec.4. Sub-sec(1) or Sec.7 or Sec.24, any offence punishable with rigorous imprisonment for three years and upwards. .(b) may seize and detain any liquor, drug, or other article which he has reason to delieve to be liable to confiscation under this Act, and .(c) may search, any person, vessel, vehicle, animal, package, receptable or covering, upon whom or in or upon which, he may have reasonable cause to suspect any such liquor, drug or other article to be, or to be concealed; Provided that if the officer or person making the arrest under this section be not empowered under Sec.27 to admit to bail, the person arrested shall be forthwith forwarded to an officer so empowered, if such an officer is known to be within a distance of five miles from the place where such arrest took place. And it shall be the duty of such officer empowered as aforesaid to admit such person to bail if sufficient bail be tendered for his appearance before a Police or Prohibition Officer or Magistrate having jurisdiction to inquire into the case., Provided further that where any toddy or wash or any sonti soru is seized under this section by any officer or person, such officer or person may destroy or cause to be destroyed on the spot, the toddy, wash or sonti soru and send the posts or other receptacles in which the toddy, wash or sonti soru was kept to the police or Prohibition Officer or Magistrate having jurisdiction to inquire into the case. Provided also that where any illicit arrack is seized under this section by any officer or person, such officer or person may, in the presence of a Prohibition Officer or any Police Officer not below the rank of Inspector- .(i) take two samples of the illicit arrack of such quantity and in such manner as may be prescribed; and .(ii) destroy or cause to be destroyed the illicit arrack; and send the pots or other receptacles in which the illicit arrack was kept, together with samples taken and a certificate from the Officer in whose presence the samples were taken and the illicit arrack was destroyed, as to the total quantity of illicit arrack seized, the total quantity taken as sample and the total quantity destroyed, to the Magistrate having jurisdiction to inquire into the case. The Magistrate, shall upon the receipt of the samples retain one in this Court and send the other to such officer as may be prescribed for chemical analysis”. 6. Mr.P.Venkatasubramanian, learned counsel submitted that to bring a person within the definition of bootlegger’ as per Sec.2(b) of the Act, he must have contravened any of the provisions of TNP Act and if a person is stated to have contravened any of the provisions of TNP Act, then the provisions of Sec.32 of TNP Act have to be satisfied. The Legislature in its wisdom has incorporated the provisions under TNP Act within the definition of ‘bootlegger. That means, unless a person contravenes any of the provisions, of TNP Act, he cannot be termed as a bootlegger. Therefore, there is no other provision excepting TNP Act and the rules, notification and orders made thereunder for dealing with a person who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor or other intoxicant. The Legislature has also in its wisdom, other than TNP Act has included the words ‘or in contravention of any other law for the time being in force’. Therefore, the provisions of TNP Act and especially Sec.32 of TNP Act have to be complied with. 7. Learned Additional Public Prosecutor, at this juncture, pointed out that the provisions of TNP Act and the rules, notification’s and orders made thereunder have to be strictly followed especially in the case of criminal trial and in the case of preventive detention, such strict compliance, is not at all necessary. 7. Learned Additional Public Prosecutor, at this juncture, pointed out that the provisions of TNP Act and the rules, notification’s and orders made thereunder have to be strictly followed especially in the case of criminal trial and in the case of preventive detention, such strict compliance, is not at all necessary. He submitted that the subjective satisfaction of the detaining authority could be tested only on the ground of malafides or on the ground that no reasonable man would come to such conclusion. According to him, the evidence inadmissible in a criminal trial can be relied upon in a detention case and statements under Sec.161, Crl.P.C. which are not admissible in criminal trial, can be relied upon a preventive detention case. He also pointed out that the confession of a detenu before a police officer even though not admissible in criminal trial, can be relied upon in preventive detention and facts on which the criminal prosecution failed, can be relied upon while passing a detention order. He also submitted that even if the search and seizure are illegal, the evidence collected under such illegal search and seizure can be acted and relied upon in a detention case. Learned Additional Public Prosecutor further submitted that the procedure in the TNP Act is different for punishing the offenders and such procedure is not contemplated in a case of preventive detention and there is no right to. the accused to request the Magistrate’s Court to send one sample to the analyst and retain another sample in the Court itself in a case of preventive detention as envisaged under Sec.32 of TNP Act. Learned Additional Public Prosecutor pointed out the distinction in the Prevention of Food Adulteration Act and TNP Act. In the Food Adulteration Act, if the accused is not satisfied with the report of the State analyst, he can request the Magistrate to send the other sample to the Central Laboratory for analysis and that the opinion received from the Central Analyst has to be relied upon in preference to the report submitted by the State analyst. Therefore, according to the learned Additional Public Prosecutor, no such provision is made in TNP Act and therefore, the procedure contemplated under Sec.32 of TNP Act cannot be invoked in a preventive detention case. Therefore, according to the learned Additional Public Prosecutor, no such provision is made in TNP Act and therefore, the procedure contemplated under Sec.32 of TNP Act cannot be invoked in a preventive detention case. In the preventive detention, suspicion and reasonable probabilities of the detenu committing the offence, are necessary for proceeding under the detention laws and the subjective satisfaction of the detaining authority is sufficient in the case of preventive detention whereas proof beyond reasonable doubt is necessary for punishing the accused in a criminal trial and the satisfaction of the detaining authority cannot be reviewed at all. In support of his contention, learned Additional Public Prosecutor relied upon the certain decisions which we will refer later on. 8. Sec.32(c)(ii) of TNP Act states that the Magistrate, shall upon the receipt of the samples retain one in his court and send the other to such officer as may be prescribed for chemical analysis. This procedure of retaining one sample in court and sending the other sample to the Forensic Science Laboratory for analysis has been followed in all the cases till recently. Mr.P.Venkatasubramanian, learned counsel for the petitioners in H.C.P.Nos.545 of 1992 and 714 of 1993 relied upon the decision reported in Rajamanickam v. State, 1961 M.W.N. (Crl.) 169, wherein this Court (Ramakrishnan, J) has held that Sec.32 of Prohibition Act is a safeguard which the statute has provided and it is necessary to enjoin upon the police officers who make searches and recover fermented wash and the like that the Statutory provision should be complied with. The circumstances that it has been held in Rajabather v. State, 1959 M. W.N. (Crl.) 125, that the omission to comply with the provision did not vitiate trial should not be treated as an authority for making the statutory provision a dead letter. In that case, this Court held that the omission to comply with the provision or section of the Prohibition Act will not vitiate the trial and convicting when the other evidence in the case had brought home the offence to the accused beyond all reasonable court. In that case, this Court held that the omission to comply with the provision or section of the Prohibition Act will not vitiate the trial and convicting when the other evidence in the case had brought home the offence to the accused beyond all reasonable court. In the decision reported in Muthukrishnan v. State, 1961 M.W.N. (Crl.) 189, this Court (Veeraswami, J., as he then was) has held as follows: "It is permissible to draw an inference under Sec.114, Evidence Act from certain external features and circumstances like the label and smell indicating the nature of the contents of the bottles seized, the cork being intact and so forth that the contents are prohibited liquor. But when once a challenge is made by an accused that the contents are not prohibited liquor and that no presumption should be drawn from the external factures, it may then be necessary to obviate all doubts at all stages of the trial to have the contents analysed and to put the nature of the contents beyond any possibility of speculation. It is for the prosecution to establish the case by evidence that the contents of the bottles were prohibited liquor and for that purpose it was necessary to preserve them until the prescribed time. In examining the contents of the bottles himself and then ordering their destruction the magistrate took upon himself the role of a prosecution witness which the court should not do. Where a mahazar has. been prepared and attested by witnesses it is desirable and in some cases it may even be necessary from the stand point of the prosecution to examine at least one such witness in addition to the police officer who actually seized the materials.“ In the decision reported in Khudiram Das v. State of West Bengal, A.I.R. 1975 S.C. 55 and relied on by Mr.P.Venkatasubramanian, the learned counsel, their Lordships of the Supreme Court held that the ‘grounds’ under Art.22(5) mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. Nothing less than all the basis facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Art.22(5). Nothing less than all the basis facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Art.22(5). The second safeguard in Art.22(5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. The power of detention is clearly a preventive power. It does not partake in any manner of the nature of punishment. The exercise of the power of detention under Sec.3(1) & (2) of the Maintenance of Internal Security Act, 1971 is made dependent on the subjective satisfaction of the detaining authority that with a view to preventing a person from acting in a prejudicial manner, as set out in Sub-clauses (i), (ii), and (iii) of clause (a) of Sub-sec.(1) it is necessary to detain such person. The Supreme Court in the abovesaid decision has further held as follows: "The power of detention is not a quasi-judicial power. But the subjective satisfaction of the detaining authority is not wholly immune from judicial review ability. The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. A law of preventive detention, which falls within Art.22, has also to meet the requirement of Art.14 or Art.19. Sec.3 of the Maintenance of Internal Security Act in so far as it empowers the detaining authority to exercise the power of detention on the basis of its subjective satisfaction, however, does not impose unreasonable restrictions on the fundamental rights of the petitioner detenu under clauses (a) to (d) and (g) of Art.19, and is not ultra vires and void“. Sec.3 of the Maintenance of Internal Security Act in so far as it empowers the detaining authority to exercise the power of detention on the basis of its subjective satisfaction, however, does not impose unreasonable restrictions on the fundamental rights of the petitioner detenu under clauses (a) to (d) and (g) of Art.19, and is not ultra vires and void“. [emphasis Supplied] In the decision reported in Ashadevi v. K.Shivraj, A.I.R. 1979 S.C. 447, which the learned counsel Mr.P.Venkatasubramanian, relied the Supreme Court has observed as follows: "It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order“. In that case, by a detention order the detenu was detained with a view to preventing him from engaging in transporting smuggled goods. In passing the detention order the detaining authority based its decision on the detenu’s confessional statement made earlier before the Customs Officers. The said confessional statements were subsequently retracted by the detenu at the first available opportunity while he was in judicial custody. In the above facts and circumstances of that case, the Supreme Court held as follows: "The questions whether the confessional statements recorded earlier were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority, it was held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the detention order invalid and illegal“. In the decision reported in Kamla v. State of Maharashtra, A.I.R. 1981 S.C. 814, the Supreme Court observed that the documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. Before an order of detention can be supported, the constitutional safeguards must bestrictly observed. In view of the decision in Maneka Gandhi’s case, A.I.R. 1978 S.C. 597, Art.22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Art.21 has to be reasonable, fair and just, then the words ‘effective representation’ appearing in Art.22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. If the words ‘effective representation’ are interpret in an artificial or fanciful manner, then it would defeat the very object not only of Art.22(5), but also of Art.21 of the Constitution. 9. Learned Additional Public Prosecutor relied upon the judgment reported in Shibanlal v. State of U.P., (1954)1 M.L.J. 143:55 Crl.L.J. 456:1954 S.C.A. 53:1954 S.C.R. 418:1954 S.C.J. 73: A.I.R. 1954 S.C. 179, wherein it is held by the Supreme court that sufficiency of the particulars conveyed to a detenu in accordance with the provision embodied in Art.22(5) of the Constitution is a justiciable issue, the test being whether they are sufficient materials to enable the detenu to make effective representation. It is further held by the Supreme Court as follows; “The power to issue a detention order under Sec.3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a Court of law, except on the ground of mala fides. The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a Court of law, except on the ground of mala fides. A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under Sec.7 of the Act. Where however the Government itself while confirming the detention in exercise of its powers under Sec.11 admits that one of the two grounds mentioned in the original order is unsubstantial or non-existent, to say that the other ground, which still remains is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole“. Learned Additional Public Prosecutor submitted that the non-prosecution of a person concerned for his past activities which amount to an offence, would not operate as a bar to his detention under Sec.3 of Maintenance of Internal Security Act, 1971 and for this proposition, he cited a decision reported in Mohd. Subrati v. State of West Bengal, 1973 M.L.J. (Crl.) 267: (1973)1 S.C.J. 677: 1973 S.C.C. (Crl) 245: A.I.R. 1973 S.C. 207 and the Supreme Court in the above decision observed as follows: ”If for any reason it is not possible to successfully try and secure the convicting and imprisonment of the persons concerned for their past activities which amounts to an offence, but which are also relevant for the satisfaction of the detaining authority for considering it necessary that a detention order under Sec.3 be made for preventing such persons from acting in a prejudicial manner as contemplated by that section then, the Act would indisputably be attracted and a detention order can appropriately be made. The detention order in such a case cannot be challenged on the ground that the person ordered to be detained was liable to be tried for the commission of the offence or offences founded on his conduct, on the basis of which, the detention order has been made or that proceedings under Chater VIII, Crl.P.C. could be initiated against him. Jurisdiction to make orders for preventive detention under Sec.3 is different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would not operate as a bar to a detention order or render it mala fide.. The matter is also not res Integra". Learned Additional Public Prosecutor also relied upon the decision reported in Sub Divisional Magistrate, Delhi v. Ram Kali, A.I.R 1986S.C. 1. In that decision, the Supreme Court observed as follows: "Secs.3 and 7 of Suppression of Immoral Traffic in Women and Girls Act provide for the punishment of persons guilty of the offences mentioned therein. Any contravention of the provisions mentioned therein amounts to a cognizable offence in view of Sec.14 whereas a proceeding under Sec. 18 is in no sense a prosecution. It is a preventive measure. It is intended to minimise the chance of a brothel being run or prostitution being carried on in premises near about public places. The enquiry contemplated by Sec.18 is summary in character. The attachment contemplated by that section can ensure only for a period of one year. Under these circumstances evidently the legislature thought that a regular trial and an appeal against the order of the Magistrate is not called for". The Supreme Court also observed that under Sec.l90(1)(b) of the Code of the Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words ‘may take cognizance’ in the context means ‘must take cognizance’. He has no discretion in the matter, otherwise that Section will be violative of Art.14 of the Constitution. The Supreme Court also observed as follows: "Secs.3 and 7 of the Act deals with persons guilty of offences whereas Sec.18 deals with the premises mentioned therein. The set of facts to be proved in prosecutions under Sec.3 or 7 and in proceedings under Sec.18 are not identical. The Supreme Court also observed as follows: "Secs.3 and 7 of the Act deals with persons guilty of offences whereas Sec.18 deals with the premises mentioned therein. The set of facts to be proved in prosecutions under Sec.3 or 7 and in proceedings under Sec.18 are not identical. In the former, the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the latter they are not necessary ingredients Sec.18 provides for two classes of cases namely,(1) those coming either under Sec.3 or 7 as well as under Sec. 18 and (2) those coming only under Sec.18. They are two distinct classes of cases-a classification which has reasonable relationship with the object sought to be achieved and, therefore, the difference in two procedures prescribed does not amount to discrimination under Art 14. Sec.18 is not, therefore, ultra vires as offending Art.14 of the Constitution". In the decision reported in State of Punjab v. Sukhpal Singh, A.I.R. 1990 S.C. 231 and relied on by the learned Additional Public Prosecutor, the Supreme Court observed that under Sec.3 of the National Security Act (65 of 1980), the registration of criminal prosecution against detenu is not a condition precedent and preventive detention by way of anticipatory and precautionary action and on subjective satisfaction of State that detenu will indulge in terrorists activities if released from jail is sufficient and preventive detention can be ordered notwithstanding that no criminal case is registered against him. In the decision reported in Partap Singh v. Director of Enforcement, F.E.R. Act, A.I.R. 1985 S.C. 989, the Supreme Court observed that Sec.37(2) of Foreign Exchange Regulation Act (46 of 1973) provides that the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under Sec.37(1) of Foreign Exchange Regulation Act. Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in Sec.165, Crl.P.C. has to be generally followed. The expression ‘so far as may be’ has always been construed to mean that those provisions may be generally followed to the extent possible. Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in Sec.165, Crl.P.C. has to be generally followed. The expression ‘so far as may be’ has always been construed to mean that those provisions may be generally followed to the extent possible. It cannot be said that Sec.l65(1) of Crl.P.C. has been incorporated by pen and ink in Sec.37(2) of F.E.R. Act, in view of the positive language employed in the Section that the provisions relating to searches shall so far as may be apply to searches under Sec.37(1) of F.E.R. Act. It merely provides that the search may be carried out according to the method prescribed in Sec.l65(1) of Crl.P.C. If the duty to record reasons which furnish grounds for entertaining a reasonable belief were to be recorded in advance, the same could have been incorporated in Sec.37(1) of F.E.R. Act, otherwise a simple one line section would have been sufficient that all searches as required for the purpose of this Act shall be carried out in the manner prescribed in Sec.165, Crl.P.C. by the officer to be set in the section. In order to give full meaning to the expression ‘so far as may be’, Sub-sec.(2) of Sec.37 should be interpreted to mean that broadly the procedure relating to search as enacted in Sec.165, Crl.P.C, shall be followed. But if a deviation becomes necessary to carry out the purposes of the Act in which Sec.37(1) is incorporated, it would be permissible except that when challenged before a court of law, justification will have to be offered for the deviation. 10. Learned Additional Public Prosecutor also relief upon a decision reported in State of Bombay v.Atma Ram, A.I.R. 1954 S.C. 157. That was a case of detention under Preventive Detention Act (IV of 1950) wherein the Supreme Court has observed as follows: “The satisfaction of the Government must be based on some grounds. There can be no satisfaction if there are no grounds for the same. That was a case of detention under Preventive Detention Act (IV of 1950) wherein the Supreme Court has observed as follows: “The satisfaction of the Government must be based on some grounds. There can be no satisfaction if there are no grounds for the same. If the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court......The question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the inquiry of the Court. But the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdic-tion of the court’s inquiry and subject to the court’s decision. If the representation to be made by detenu contemplated by Art.22(5) has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Without getting information sufficient to make a representation against the order of detention, it is not possible for the man to make the representation. Indeed the right will be only illusory but not a real right at all. The right to receive the grounds is independent but it is intentionally bound up and connected with the right to make the representation”. In the decision reported in K.Aruna Kumari v. Government of A.P., A.I.R. 1988 S.C. 227, which the learned Additional Public Prosecutor relied upon the Supreme Court held as follows: “The Supreme Court while considering a detenu’s writ application is not sitting in appeal over the detention order and it is not for the Court to go into and assess the probative value of the evidence available to the detaining authority. Of course, a detention order not supported by any evidence may have to be quashed, but it cannot be so quashed when there was clearly sufficient material before the District Magistrate to justify the forming of his opinion. Of course, a detention order not supported by any evidence may have to be quashed, but it cannot be so quashed when there was clearly sufficient material before the District Magistrate to justify the forming of his opinion. Besides, the detenu accepted the allegations against himself in his statement recorded under Sec.161, Crl.P.C. It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention”. In the same decision, the Supreme Court has further observed as follows: “The subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made, namely, the grounds of detention constitute the foundation for the exercise of the power of detention and the court cannot be invited to consider the propriety or sufficiency of the grounds, on which the satisfaction of the detaining authority is based. Nor can the court, on a review of the grounds substitute its own opinion for that of the authority. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts. If ‘material and vital facts’ which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. But it cannot be so where there was ample material before the District Magistrate for him to base his subjective satisfaction as to the necessity for passing impugned order”. In a Full Bench judgment of this Court reported in Suman v. The State of Tamil Nadu, 1986 L.W. (Crl.) 221 to which one of us (Venkataswami, J.) is a party held that the detention proceedings do not constitute either criminal proceedings or judicial proceedings and that the order is executive in character, based on subjective satisfaction of the authority. In a Full Bench judgment of this Court reported in Suman v. The State of Tamil Nadu, 1986 L.W. (Crl.) 221 to which one of us (Venkataswami, J.) is a party held that the detention proceedings do not constitute either criminal proceedings or judicial proceedings and that the order is executive in character, based on subjective satisfaction of the authority. The Full Bench further held that the confessional statement made by the detenu to the police officer can be considered by the detaining authority as material relevant for making an order of detention against the maker of the statement, but the weight to be attached to it is for the said authority to decide. The jurisdiction to detain by way of preventive detention is a jurisdiction of suspicion and is not based on proof of any offence or act beyond all reasonable doubt and neither the proceedings before the detaining authority or before the Advisory Board can be held to be judicial or quasi-judicial in character, nor are they of a criminal or a quasi criminal character. The decision reported in Pooran Mal v. Director of Inspection, A.I.R. 1974S.C. 348 and relied upon by the learned Additional Public Prosecutor is a case arising under Secs.132 and 132-A of the Income Tax Act where the Supreme Court has observed as follows: “The restriction placed by the provisions of Secs.132,132-Aor Rule 112-A are not unreasonable restrictions on (he freedoms under Art.l9(1)(f) and (g) of the Constitution. The provisions of Secs.l32(1)(5), 132-A and Rule 112-A are directed against persons who are believed on good grounds to have illegally evaded the payment of tax on their income and property. Therefore, drastic measures to get at such income and property with a view to recover the government dues would stand justified in themselves. In the interest of community it is only right that the fiscal authorities should have sufficient”powers to prevent large scale tax evasion. The power to order search and seizures is vested in the highest officers of the department. Secondly the exercise of this power can only follow a reasonable belief entertained by such officer that any of the three conditions mentioned in Sec. 132(1) (a), (b) and (c) exists. The safeguards in Secs.132, 132-Aand Rule 112-Aare adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances. Secondly the exercise of this power can only follow a reasonable belief entertained by such officer that any of the three conditions mentioned in Sec. 132(1) (a), (b) and (c) exists. The safeguards in Secs.132, 132-Aand Rule 112-Aare adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances. The provisions, therefore, relating to search and seizure in Sec.132 and Rule 112 cannot be regarded as violative of Art.l9(1)(f) and (g)“ The Supreme Court further observed: "Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out. The relevant evidence cannot be excluded merely on the ground that it is obtained by illegal search or seizure. Therefore, even assuming that the search and seizure were in contravention of the provisions of Sec.132 still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized and, therefore, no writ of prohibition in restraint of such sue could be granted“. The Supreme Court also further held as follows: "It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusions of evidence obtained on an illegal search". 11. Learned Additional Public Prosecutor, therefore, contended that the practice of sending one bottle or two bottles for examination by Forensic Science Laboratory has no legal footing and that any violation of the same will not vitiate the order of detention. According to him as per the decisions cited above, the evidence collected in the illegal search, can be used as evidence in the criminal proceedings. But the citations referred to above by the learned Additional Public Prosecutor are in relation to criminal proceedings and it cannot be applied to a case of preventive detention. According to him as per the decisions cited above, the evidence collected in the illegal search, can be used as evidence in the criminal proceedings. But the citations referred to above by the learned Additional Public Prosecutor are in relation to criminal proceedings and it cannot be applied to a case of preventive detention. Here, the provisions of Tamil Nadu Prohibition Act, 1937 and the rules, notifications and orders made thereunder are all inbuilt under Sec.2(b) of the Act 14 of 1982 and the Parliament in its wisdom has incorporated the provisions of the TNP Act within the definition of ‘bootlegger’ under Sec.2(b) of the Act and the procedure of sending one bottle to the Forensic Science Laboratory and retaining another bottle in the Magistrate’s court is a safeguard to a citizen, as otherwise, there would be interference with the freedom guaranteed to a citizen under Arts.19,21 and 22(5) of the Constitution of India. In the decision Smt.Shalini Soni v. Union of India and others, A.I.R. 1981 S.C. 431, the Supreme Court held”since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Art.22(5) read with Art.19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu". We are unable to agree with the contention of the learned Additional Public Prosecutor that the procedure of sending one bottle or two bottles directly to the laboratory, cannot be invoked in the case of preventive detention. All the more it is necessary because in a criminal case, there is opportunity to the accused to prove in defence by letting in oral and documentary evidence; whereas in a case of preventive detention, there is no such opportunity for a citizen. The other limb of the argument of the learned Additional Public Prosecutor is that in the attention case, only suspicion or reasonable probability is the ground and the repetition of illegal activities of the detenu has to be prevented. Even in such cases, the procedure of sending one bottle to the analyst and retaining another bottle in court is not onerous and it cannot be said that it is not possible to follow. Even in such cases, the procedure of sending one bottle to the analyst and retaining another bottle in court is not onerous and it cannot be said that it is not possible to follow. There is no other separate rule or provision framed under the Tamil Nadu Act 14ofl982and therefore, we have to take the proocedure from the provisions of TNP Act for testing the sample as provided under Sec.32 of TNP Act Our Constitution has guaranteed the liberty of a citizen and freedom; but subject to certain preventive laws and even in such cases, there should be just, reasonable and fair trial as pointed out Maneka Gandhi’s case, A.I.R. 1978 S.C. 597. We have also held in H.C.P.No.52 of 1992 and W.P.Nos.11774 to 11776 of 1992 that taking of sample of arrack in one bottle or two bottles and sending them for examination by the Forensic Science Laboratory without retaining any bottle in the court, would vitiate the order of detention. 12. In view of the discussion made above, we are of the opinion that the procedure under Sec.32 of TNP Act has to be strictly followed even in the case of preventive detention and any violation of the same, would vitiate the order of detention. In all the above cases, we are of the opinion that the sponsoring authority has sent one or two bottles of samples from the seized contraband for analyst’s report and that no sample was retained in Court as per the provision of Sec.32 of TNP Act. Therefore, we hold that the detention of the detenu in the respective cases is vitiated and accordingly, the order of detention in the respective cases is quashed. All the petitions are allowed. The respondents are directed to release the detenu in the respective cases from custody forthwith unless they are liable to be detained in custody for some other cause.