Sathi alias Muthusamy v. The Secretary to Government of Tamil Nadu,
Prohibition and Excise Department, Madras and Another
1994-06-29
GULAB C.GUPTA, THANIKKACHALAM
body1994
DigiLaw.ai
Judgment :- Gulab C. Gupta, J. The petitioner has been ordered to be in prison under a preventive detention order dated 18. 1993 passed by the second respondent and has preferred this writ petition from jail challenging the legal and constitutional validity thereof. 2. From the grounds of detention supplied to the petitioner and filed along with this petition, it appears that the information was received by police authorities from one Veeramani that the petitioner was selling I.D. arrack containing poisonous substance. The said report was recorded on 8. 1993 and consequent thereupon, the police party visited the place and found the petitioner pouring I.D. arrack on a glass tumbler to an unknown person. On seeing the police party, he threw away the glass tumbler and ran away. The party, however, surrounded the petitioner and arrested him with a 10 litre can containing about 8 litres of arrack and cash of Rs. 15. Two samples of the said arrack were prepared and property sealed. One of them was later sent for chemical examination which revealed that the arrack contained Atropine equivalent to 2. mg. per cent in it. The opinion was taken from the Assistant Professor, Forensic Medicine, Madurai Medical College, Madurai, about the condition of Veeramani and the effect of Atropine contained in the arrack. The material was allegedly placed before the second respondent, who recorded his satisfaction that the petitioner was a “bootlegger” within the meaning of Act 14 of 1982 and his activities were causing widespread danger to public health. That is how the petitioner was ordered to be detained. .3. The learned counsel for the petitioner impugned the aforesaid detention on the ground that the detaining authority has not applied his mind to the material on record and has mechanically passed the said order. The counsel argued to point out that though the petitioner was arrested on 8. 1993, the affidavit filed by the Inspector before the detaining authority indicates that he was in detention from 16. 93 to 28. 93. If this affidavit was to be true, there would be no justification for any incident on 8. 1993. This, according to the learned counsel, needed attention of the detaining authority and indicates that he has not seriously and carefully applied his mind to the facts on record.
93 to 28. 93. If this affidavit was to be true, there would be no justification for any incident on 8. 1993. This, according to the learned counsel, needed attention of the detaining authority and indicates that he has not seriously and carefully applied his mind to the facts on record. It was also submitted with reference to the papers supplied to the petitioner that though the offence was committed on 8. 1993, the First Information Report in relation to that offence was sent to the Magistrate on 7. 1993. This, according to the learned counsel, is a major discrepancy clearly indicating non-application of mind. It was further submitted that though the petitioner was, on the date of the impugned order, in Sub-Jail, Sivaganga, the detention order mentions that he was in Central Prison, Madurai. On these facts, it is submitted that the authority has not been cautious and careful in its approach and has not applied its mind to the facts of the case, as required by law. The order is, therefore, said to be mechanical in nature, liable to be set aside by mis Court. The learned Public Prosecutor however submitted that the aforesaid discrepancies are not material mis-statements of fact and therefore do not affect the satisfaction which has been clearly and specifically recorded by the detaining authority. Reliance has been placed by him on the Supreme Court decision in Pushpadevi M. Jatia v. M.L. Wadhawan, 1987 S.C.C. (Crl.) 526. .4. Having considered the submissions of the learned counsel for the parties as aforesaid, we are clearly of the opinion that it is a case where the detaining authority has not been careful and cautious in dealing with the matter. It is a case where casualness is writ large almost at every stage. It is not only the Inspector of Police, who has given wrong affidavit containing misstatement about the remand of the petitioner but there was casualness even at the stage of investigation of the alleged crime. The discrepancies mentioned above may not be material if considered separately and individually. But their cumulative effect is bound to be substantial. These discrepancies are, however, sufficient to infer mat the detaining authority has not taken any interest in the matter and signed the impugned order on the dotted line.
The discrepancies mentioned above may not be material if considered separately and individually. But their cumulative effect is bound to be substantial. These discrepancies are, however, sufficient to infer mat the detaining authority has not taken any interest in the matter and signed the impugned order on the dotted line. We have, therefore, thought it proper to peruse the original order and the case file and feel satisfied mat it is a case where the order has been signed by the detaining authority even without reading it. The grounds do not contain the date on which the document is recorded. Then the signatures of the detaining authority are in red ink and seem to have been put on the last page only and without reading the order. We infer mis from the fact that corrections in the document are carried out in green and blue inks and have not been initialled or countersigned by the detaining authority. It is, therefore, possible to infer mat these corrections did not exist when the order was signed by the detaining authority and the detaining authority having signed the order, left it to be corrected by some of his subordinates. If these corrections had been made before obtaining the signatures of the detaining authority they would have surely been initialled or counter-signed by him. Then, we also notice mat several uninitialled insertions have been made, which are material to the satisfaction of the detaining authority. If the facts so inserted did not exist at the time the authority signed this order, it would destroy the very basis of the detention. Then, paragraph 6 of the typed order has been scored out, but it is not clear as to who scored it out. In any case, it is clear to us that it was not scored out by the detaining authority. We are, therefore, inclined to hold that the detaining authority had not read this paragraph. Nay, it is possible to hold that the detaining authority has not read the entire order. If the authority had really read the order, it would not have missed the fact that contents of paragraphs 5 and 6 are the same and only one has to be contained in the order. In that case, he would himself have scored out one of the paragraphs.
If the authority had really read the order, it would not have missed the fact that contents of paragraphs 5 and 6 are the same and only one has to be contained in the order. In that case, he would himself have scored out one of the paragraphs. Since, this has not been done, it is apparent that the order has not been passed with requisite care and caution. We are, therefore, inclined to accept the submission that there has not been any application of mind by the detaining authority to the facts of the case and the order has been passed mechanically. 5. In this connection, we would like to recall the decision of this Court in Reetha v. The Government of Tamil Nadu, H.C.P.No. 1591 of 1993, dated 22. 1994, wherein a Division Bench of this Court has regretted the prevalent practice of detaining authorities not taking the matter seriously and mechanically signing the order. The Division Bench has taken pains to outline the proper course to be followed in such cases. The minimum that we would expect from the detaining authority is to pass the order in a manner so as to indicate that he has applied his mind to the facts and circumstances of the case and recorded his satisfaction as contained therein. This approach is a careful and cautious approach to be adopted in the context of Art. 22(5) of the Constitution of India and the provisions of Tamil Nadu Act 14 of 1982. It must be regretted that the detaining authority, in the present case, has not been as carefully and cautious as expected of him and has adopted a casual and careless approach in dealing with a matter involving Constitutionally guaranteed liberty of a citizen. We are therefore, satisfied that it is a fit case for issue of a Writ of habeas corpus to quash the impugned order of detention. 6. The petition succeeds and is allowed by quashing the impugned order of detention. The petitioner is directed to be set at liberty if not required in connection with any other case, in accordance with law.