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1994 DIGILAW 246 (MAD)

Chinnadurai v. State of Tamil Nadu represented by Secretary to Government, Prohibition and Excise Department, Madras

1994-03-07

ARUNACHALAM, THANGAMANI

body1994
Judgment : ARUNACHALAM, J.: 1. Petitioner Chinnadurai, is the son of detenu Maruthai who has been detained as a bootlegger under Tamil Nadu Act No. 14 of 1982, in pursuance of an order of detention dated 1.9.1993 passed by the second respondent, District Magistrate and Collector, Salem with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order and health. 2. Petitioner had come to adverse notice in six prior crimes registered by Thalaivasal Police Station and Attur Prohibition Enforcement Wing, for offences punishable under Secs. 4(1)(a), 4(1)(b) and 4 (1)(i) of the Tamil Nadu Prohibition Act, crime period ranging between March, 1992 and August, 1993. In all the prior crimes, petitioner was sentenced to pay a fine which he did. While so, Jeevanantham of Attur consumed arrack sold by the detenu at or about 9 a.m. on 23.8.1993. When the detenu charged higher rate for arrack, Jeevanantham questioned him, which evoked a reply that the arrack was something special. While consuming arrack, Jeevanantham had a sense of burning in his throat and stomach. He was unable to consume the whole quantity. On his way home, he vomitted several times. Next evening, he went over to Government Hospital. Attur and took treatment. Earlier, he had taken native treatment. Since he formed an impression that some poisonous substance must have been mixed in the arrack sold by the detenu, he complained to the Sub-Inspector of Police, Prohibition Enforcement Wing, Attur, at 5.30 p.m. on 24.8.1993. The said Sub-Inspector conducted a raid at or about 7.30 p.m. on 24.8.1993 and found the detenu selling arrack to an unknown individual standing before him. On seeing the police party, the buyer took to his heels. Arrack seized from the petitioner, on analysis was found to contain poisonous atropine. Detenu was arrested and judicial remand obtained. After follow-up action, the impugned order was passed. 3. Mr.S. Swamidoss Manokaran, learned counsel appearing on behalf of the petitioner, raised a few grounds, to have the impugned order set aside. On those grounds we have heard Mr.S. Shanmugavelayudham, learned Additional Public Prosecutor. 4. The first ground was, that the detenu had pleaded for supply of certain documents through his representation dated 16.9.1993 which were not furnished though the representation was rejected on 29.9.1993. On those grounds we have heard Mr.S. Shanmugavelayudham, learned Additional Public Prosecutor. 4. The first ground was, that the detenu had pleaded for supply of certain documents through his representation dated 16.9.1993 which were not furnished though the representation was rejected on 29.9.1993. The first document requested was a copy of the intimation letter sent to the close relations of the detenu informing them of this preventive order and the place of incarceration. The next document was a copy of the remand order. The third document requested was a Government order (G.O.). Detenu had also requested for copies of Challans for payment of fines in six adverse cases, on the ground that he had remitted fine only in two cases. The next document requested was the pocket notebook of the Sub-Inspector of Police, who had arrested the detenu. He had also requested for the note transferring him from Sub Jail to Central Prison, He also wanted to know the value of the arrack seized. 5. We find, that soon after detenu was arrested within a reasonable time detaining authority sought to serve intimation on the petitioner, who is the son of the detenu, but, since, it was refused, service was effected by affixture. Supreme Court has often stated that each and every document, requested by the detenu, need not have to be supplied and only if non-supply had led to prejudice to the case of the detenu the order of detention could be struck down. We are unable to visualise how an intimation, initially refused and affixed as a consequence, need have to be supplied to the detenu and equally how non-supply could have prejudiced effective representation being made, more so when it is clear that the petitioner had visited his father in jail knowing these facts. 6. As far as the challans for payment of fine in six prior cases are concerned, rejection of representation shows that the detaining authority had applied his mind and got himself satisfied that the detenu had paid the fine in those cases. These six adverse cases have been mentioned only in passing and all that is required is that the detaining authority must be satisfied on verification of the facts stated in the representation, that, in fact, detenu had paid the fine in those adverse cases. No prejudice has been caused to the detenu on this score. These six adverse cases have been mentioned only in passing and all that is required is that the detaining authority must be satisfied on verification of the facts stated in the representation, that, in fact, detenu had paid the fine in those adverse cases. No prejudice has been caused to the detenu on this score. On this point petitioners counsel referred to our order doted 20.12.1993 in Palanisamy v. State of Tamil Nadu represented by Secretary, Prohibition and Excise Department, Madras-9 and another, H.C.P.No. 1263 of 1993 wherein we have stated as follows: “However law is settled, that of prejudice is patent due to non-supply of documents requested, then the case of the detenu would stand on a different footing. We wanted to find but, if on the basis of the representation of the detenu, the detaining authority had satisfied himself on the basis of those receipts correlatable to the fine amounts paid, that the detenu had paid them. But, unfortunately, such an exercise had not been adopted. It is therefore clear, that due to non-supply of those documents requested by the detenu, he had been prejudiced from making an effective and purposeful representation, pleading for revocation of the impugned order.” In that case, as our order clearly denotes, on the basis of the representation made by the detenu, detaining authority did not attempt to apply his mind to these receipts, of payment of fine amounts in adverse cases which, in our opinion, had resulted in prejudice to the case of the detenu therein. Needless to state that this is a question of fact, which is bound to vary from case to case and no law for universal application can be laid down on that aspect. 7. As far as the remand order is concerned, document supplied to the detenu shows, that he was demanded by the competent Magistrate. In the representation, sent on behalf of the detenu, it is stated that the detenu was not aware, if his complaint about the police, was recorded by the Magistrate in the remand order. If it is the case of the detenu that the complaint of ill treatment had, in fact, been recorded by the Magistrate, when he was produced for remand, that could make all the difference. We cannot allow the detenu to fish out information. If it is the case of the detenu that the complaint of ill treatment had, in fact, been recorded by the Magistrate, when he was produced for remand, that could make all the difference. We cannot allow the detenu to fish out information. Non-supply of a possible entry, of the alleged complaint made by detenu to the Magistrate, is so vague, as vaguenees could be, and hence on this score of non-supply of an imaginary document, detenu cannot succeed. 8. No Government order need have to be supplied to the detenu and it is settled law. We are unable to understand the significance in requisitioning the pocket notebook of the arresting Sub-Inspector of Police, the memo transferring the detenu from one prison to another and the value of arrack seized. Non-supply of these documents, certainly, could not have led to any prejudice to the case of the detenu. They are also not relied upon documents. In our opinion, the first ground has no strength whatever. It shall stand rejected. 9. The next ground was that the affidavit of the sponsoring authority refers to three adverse cases, but in the grounds, detaining authority has mentioned six such cases. Detenu, obviously, cannot make a grievance on this score, since material for six cases have been supplied. 10. The next ground was, that the proposal for detention was made on 28.8.1993 and the order of detention was passed even on 1.9.1993. We are unable to comprehend why such an order could not have been made, especially when there was sufficient time gap in between. 11. The next ground was, that the bail petition made by the detenu was dismissed on 1.9.1993 and that fact could not have been within the awareness of the detaining authority, since the impugned order was passed on the very same day. It is not as though that the impugned order was passed in the early part of the day on 1.9.1993 for it could have been passed any time during the whole day and if that be so, statement in the grounds of detention that the bail plea of the petitioner was dismissed on 1.9.1993 cannot cast any suspicion on the arrival of subjective satisfaction of the detaining authority. Execution was on 3.9.1993. 12. Execution was on 3.9.1993. 12. The next ground was, that in pages 36 and 37 of the paper book, remand orders have been furnished to the detenu in English and Tamil. In the English version, number of days of remand ordered had not been mentioned, while in the Tamil order the remand period has been mentioned as 15 days. The argument was something extra has been mentioned in the tamil translation, which does not exist in the English version of the same document, it is clear that there has been some carelessness, but on this ground, detenu cannot succeed for the date fixed for production of the detenu before court in both these documents tally. Further, date of obtaining of remand also tallies in both these documents. This ground has no strength whatever. 13. The next ground was that this Court should satisfy itself, if, in fact, representation sent on behalf of the detenu was properly considered by calling for para-war remarks. The entire detention file was placed for our scrutiny. We find that para-war remarks were called for by the detaining authority and thereafter representation was disposed of in a proper pattern. This ground has practically no base whatever. 14. The last ground was that under Tamil Nadu Act 14 of 1982 the words used are “acting in any manner prejudicial to the maintenance of public order or health” while the impugned order shows “public order and health”. It showed non-application of mind. We do not think that this argument deserves a second look. It shall stand rejected. 15. One other judgment of ours was placed for our scrutiny by Mr.S. Swamidoss Manokaran to substantiate his contention that remand order requested ought to have been supplied. In H.C.P.No. 1782 of 1993 dated 3.3.1994, S. Dhanapal v. District Magistrate and Collector of Thanjavur and another we stated that the detenu therein had requested for supply of copy of the remand order, specifically stating that he was not arrested as alleged and that he had complained before the Magistrate about the ill-treatment meted out to him as well as the actual date when he was arrested. We took note of the object of the representation and the manner in which representation had been rejected, without consideration of the specific request made by the detenu therein on valid grounds. We took note of the object of the representation and the manner in which representation had been rejected, without consideration of the specific request made by the detenu therein on valid grounds. In that case, on facts, we were satisfied that the detenu had been prejudiced. As we have already stated, every case will have to be decided on its own facts. If prejudice is patent, we hold in favour of the detenu. If, in our view, no prejudice stood caused to the detenu. We reject arguments of this nature. We cannot have a rigid law, which will have to be mechanically applied to every case, irrespective of facts. All grounds are rejected. 16. This is habeas corpuspetition, which has no merit, shall stand dismissed.