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Durai v. Secretary To Government Of Tamil Nadu And Another

Madras High Court

Mar 8, 1994

Judgment

Subsequent
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Structured Summary of the Opinion (Durai — Preventive Detention)

Factual and Procedural Background

Durai (the petitioner) was detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982), by order of the District Magistrate and Collector of Chengai‑M.G.R District at Kancheepuram.

The grounds of detention referred to two prior incidents concerning distillation of arrack for which fines had been imposed. The immediate ground for arrest arose from a police raid on the morning of 25 July 1993 by the Prohibition Enforcement Wing, in which the petitioner was arrested for selling illegally distilled arrack mixed with Chloral Hydrate. Two sample bottles and a quantity of ganja were seized and sent for chemical examination. The chemical analyst's report detected 116.0 mg of Chloral Hydrate per 100 ml of arrack in the sample.

The detaining authority concluded that Chloral Hydrate is an intoxicating and poisonous substance and that sale of arrack mixed with it was likely to cause widespread danger to life and public health. Although the petitioner was in remand at Central Prison, Madras, the authority detained him under the preventive detention statute on the view that bail might later be granted and he might resume prejudicial activities.

Legal Issues Presented

Whether detention under Section 3(1) of the Tamil Nadu Act, 1982 was justified on the basis that the petitioner — by selling arrack mixed with Chloral Hydrate and by past acts of distillation — was a "bootlegger" whose activities were likely to cause a grave or widespread danger to life or public health.
Whether antecedent activities involving distillation, without contemporaneous proof of sale, could be treated as continuing bootlegging activity justifying preventive detention.
Whether mention in the grounds of detention of an alleged recovery of ganja (where the chemical analyst's report had not been received at the time the order was passed) rendered the detention order invalid or otherwise susceptible to interference.

Arguments of the Parties

Petitioner's Arguments

Counsel for the petitioner argued that the present case involved an alleged sale, whereas the antecedent activities recorded in the grounds were only acts of distilling arrack. He contended that sale could not simply be equated with earlier distillation and therefore past acts of distillation should not be used as proof of continuing bootlegging activity for the purpose of preventive detention.
Counsel further attacked the detention order on the ground that the grounds mentioned an alleged recovery of ganja but the chemical analyst's report confirming whether the seized material was ganja had not been received when the detention order was made, implying potential reliance on unverified material.

State's / Respondent's Arguments

The detaining authority and the Additional Public Prosecutor pointed to the chemical analyst's report showing a significant concentration of Chloral Hydrate in the seized arrack (116.0 mg per 100 ml) and drew attention to the dangerous effects of Chloral Hydrate consumption.
It was submitted that the petitioner's past activities and the arrest for sale of arrack mixed with Chloral Hydrate established engagement in bootlegging as defined under the Act and justified preventive detention under Section 3(1).
Regarding the alleged ganja recovery, the Additional Public Prosecutor informed the court that the Chemical Analyst's report on the seized ganja had since been received and established it to be a narcotic; the detaining authority had, however, already noted in the grounds that the analyst's report on the ganja was not available at the time and had not relied on it as a basis for detention.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded by reference to the statutory definition of a "bootlegger" under the 1982 Act and to the regulatory framework governing Chloral Hydrate (the Madras Chloral Hydrate (Chloral) Rules, 1959, framed under provisions of the Madras Prohibition Act, 1937).

The court accepted the chemical analyst's finding that the seized arrack contained Chloral Hydrate at a measurable concentration (116.0 mg per 100 ml) and noted the analyst's description of the potential harmful effects of Chloral Hydrate consumption (including unconsciousness, vomiting, loss of appetite, headache, burning sensation of eyes, giddiness and respiratory failure).
The court outlined the regulatory restrictions on possession, sale, import, export and transport of Chloral Hydrate under the Madras Chloral Hydrate Rules, 1959 — including limitations on quantities, requirements of prescriptions by approved practitioners, and licence conditions for dealers and distributors — and observed that the petitioner's use and sale of Chloral Hydrate in mixture with arrack was inconsistent with those restrictions.
Applying the statutory definition of a bootlegger (which includes persons who distil, manufacture, store, transport or sell liquor or intoxicants in contravention of law), the court concluded that the petitioner's past activities and the arrest for sale of arrack mixed with Chloral Hydrate satisfied the definition and the statutory explanation that bootlegging activity may "directly or indirectly, is causing or calculated to cause any harm, danger or alarm ... or a grave or widespread danger to life or public health."
The court rejected the petitioner's argument that antecedent distillation should not be equated with sale, reasoning that distillation, transportation and sale are "invariably found inter‑mixed" and it is difficult to conceive illegal distillation and possession without associated transportation or sale. Thus the court treated the past distillation activities and the present arrest for sale as part of the same pattern of bootlegging conduct relevant to preventive detention.
On the challenge concerning mention of alleged recovery of ganja in the grounds of detention before the chemical report on the seized material was available, the court noted (and recorded) that the detaining authority itself had taken the non‑receipt of the chemical analyst's report into account and did not base the detention on the ganja recovery. The court further noted that the analyst's report on the ganja had since been received and confirmed it as a narcotic. Accordingly, the court found no basis to hold that the detention order was vitiated by reliance on unverified material.
Concluding its analysis, the court determined that the material before the detaining authority supported the view that the petitioner’s activities were likely to cause widespread danger to life and public health and therefore fell within the preventive detention provision invoked.

Holding and Implications

Holding: The court confirmed the detention order made under Section 3(1) of the Tamil Nadu Act, 1982 and dismissed the petition.

Implications:

The direct consequence for the parties is that the petitioner's detention was upheld and the preventive detention order remains effective.
The court did not purport to lay down any broader novel legal principle beyond applying the statutory definition of a bootlegger and the existing regulatory rules governing Chloral Hydrate; the opinion does not claim to have set a new precedent.

This summary is confined to the facts, submissions and analysis contained in the provided opinion and does not add material beyond that text.

Show all summary ...

Mishra, J.:— Durai, petitioner, has been detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1982 (Tamil Nadu Act 14 of 1982), under the orders of the District Magistrate and Collector of Chengai-M.G.R District at Kancheepuram. The grounds of detention referred to two incidents of crime relating to distillation of arrack and punishments of fine imposed upon him for the said offences. He has been detained, however, after his arrest in a raid in the morning of 25th July 1993 by a Prohibition Enforcement Wing of the Police in the District in connection with a case of selling illegally distilled arrack mixed with Chloral Hydrate. It is said the two sample bottles and ganja, which he was selling, were sent for chemical examination and analyst's report has revealed that in the sample he detected the presence of 116.0 mg. of Chloral Hydrate per 100 ml. of arrack.

2. Since Chloral Hydrate is an intoxicating and poisonous substance, the chemical analyst's report reveals that it came to the opinion that if a person consumed arrack with Chloral Hydrate, he would develop unconsciousness, vomitting. loss of appetite, headache, burning sensation of eyes, giddiness and respiratory failure. The detaining authority found it proper to detain the petitioner for the sale of such arrack by him was likely to cause widespread danger to life and public health and thus attract Section 3(1) of the. Act. Although the petitioner was in the Central: Prison, Madras, as a remand prisoner the detaining authority, thought, in similar cases bails were granted after a lapse of some time, there was imminent possibility that the petitioner might come out on bail at any time and might indulge in such prejudicial activities in future and thus issued order of. detention. A bootlegger has been defined under the Act as 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 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. A bootlegger thus may be found to affect or likely to affect adversely the maintenance of public order, if he is engaged or is making preparation for engaging in any of his activities as a bootlegger which, as explanation to Section 2(a) of the Act,

“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…”

3. In the instant case, the past activities of the petitioner in close proximity of the act of selling arrack mixed with Chloral Hydrate, show that he has been engaged in the proximate past in activities that fully satisfy the definition of a bootlegger under the Act. He has been arrested as shown above for an act of sale of such illicit arrack-mixed with Chloral Hydrate, which is an intoxicating and poisonous substance. Rules called. The Madras. Chloral Hydrate (Chloral) Rules, 1959, framed by the State Government in exercise of the powers conferred by Sections 3(8)(iv), 18, 21 and 54 of the Madras Prohibition Act, 1937, put a condition that any person may possess Chloral Hydrate (Chloral) as an ingredient of a mixture only on the authority of a prescription given by an approved practitioner, i.e, a medical practitioner, registered under the Madras Medical Registration Act 1914 or any person who is a licentiate or an associate licentiate in Indian Medicine of the Madras College of Integrated Medicine or any qualified medical or veterinary practitioner approved by the Commissioner of Excise and Commerical Taxes for the purpose of the rules and even such possession of a mixture having Chloral Hydrate as an ingredient, should not contain more than 3% weight/volume of Chloral or any of its preparations and if the mixture is possessed on the authority of a prescription given by an approved practitioner who is veterinary practitioner, it should not contain more than 20 per cent weight/volume of Chloral or any of its preparations, Exception to the above rule, however, is that an approved practitioner other than a veterinary practitioner, may possess for use in the course of his practice, hydrate (chloral) in pure form not exceeding 200 grains per month while an approved veterinary practitioner may possess 1 pound of the drug for use in the course of his practice during the said period.

4. Chloral Hydrate, the rules say, may be imported, exported and transported only in such quantity of Chloral Hydrate (Chloral) as an ingredient of a mixture not exceeding the limit as indicated above. An approved practitioner however may import, export and transport such quantity of the drug as he may lawfully possess, a licensed dealer may, subject to the conditions prescribed in the licence, import Chloral Hydrate (Chloral) in such quantities as may be fixed from time to time by the Collector and under an import permit issued by him. He can also export Chloral Hydrate to places outside. This State under an export permit granted by the Collector subject to such conditions as he may impose. Similarly, as licensed dealer may transport Chloral Hydrate obtained from any other licensed dealer to his licensed premises in quantity not exceeding that permitted under his licence under a transport-permit issued by the supplying licensee. The sale is restricted by Rule 5 in these words;

“5. Sale. (1) A licensed dealer may sell Chloral Hydrate (Chloral)—

(i) as an ingredient of a mixture, on the authority of a prescription issued by an approved practitioner, subject to the conditions laid down in rule 3(1);

(ii) to an approved practitioner in quantities not exceeding—

(a) 11b per month in the case of a veterinary practitioner, and

(b) 200 grains per month in other cases;

(iii) to an approved practitioner in charge of a hospital, dispensary, maternity home or veterinary hospital, dispensary or touring billet, or the head of a teaching institution where higher chemistry is taught, subject to the condition laid down in the proviso to rule 3(2);

(iv) to a licensed dealer in quantities not exceeding the limit permitted under his licence.

(2) No sale of the nature specified in column (1) of the table below shall be made under subrule (1), unless the licensed dealer is also in possession of the appropriate licence under the Drugs Rules, 1945, specified in column (2) of the table:—

Nature of sale Nature of licence required under the Drug Rules, 1945 Sale as an ingredient of a on the prescription of an practitioner mixture approved Form 20 to operate a pharmacy. Sale to an approved practitioner for use in his practice. Form 20 or 20-B Sale to an approved practitioner in charge of a hospital dispensary, etc. Form 20-B Sale to another licensed dealer Form 20-B”

5. It is obvious that the petitioner, who has used Chloral Hydrate, has procured it by some illegitimate source and has used it and sold it in mixture after mixing it with arrack, in violation of the said rules. He has thus, on the one hand, violated the prohibition on the sale of illegally distilled arrack and on the other hand, gone against the inhibitions of the Rules aforementioned in selling Chloral Hydrate.

6. Learned counsel appearing for the petitioner has however challenged the detention on the ground that the present case is one of the alleged sale while antecedent activities are only acts of distilling arrack. He has thus submitted that the activities of sale are not which could be correlated with the activities of distilling and thus what he has done in the past as a bootlegger should not be taken as having been continued in the act of selling the arrack mixed with Chloral Hydrate. We are however not impressed by the above as in such a case, distillation, transportation and sale are invariably found inter-mixed. It is difficult to perceive the illegal distillation and possession without there being any transportation and/or selling involved in it. In any case, this is not a circumstance in which the Court should give any credence to the contention aforementioned for the simple reason that the petitioner's arrest for his having been found involved in the sale of illicitly distilled arrack mixed with Chloral Hydrate is in itself an act which will cause widespread danger to life and public property.

7. Learned counsel for. the petitioner has attacked the order of detention also on the ground that in the grounds of detention, there is a mention of the alleged recovery of Ganja from the possession of the petitioner. He has pointed that whether something recovered from the petitioner's possession was Ganja was yet to be confirmed when the order of detention was passed. In fact, there is a mention in the grounds of detention that the Chemical Analyst's report relating to Ganja was not received when the decision to detain the petitioner was taken. Learned Additional Public. Prosecutor has however brought to our notice that the Chemical Analyst's report on Ganja has since been received and it has been found to be a narcotic substance. Be that as it may, while narrating the facts of the case, we have noticed, in the grounds there is a mention of the alleged report of the Inspector of Police, who claimed that he had recovered Ganja from the possession of the petitioner. While proceeding to decide whether the petitioner should be detained, the detaining authority also took notice of the fact that the Chemical Analyst's report relating to Ganja had not been received. Thus Ganja recovery was not taken as a subject to detain the petitioner. We are not satisfied in the instant case that petitioner has been able to make out any ground for interference with the order of the detaining authority. The order of detention, for the said reason is confirmed. The petition is dismissed.

8. Petition dismissed.