Durai vs Secretary to Government of Tamil Nadu and another

Mishra, J.—Durai, petitioner, has been detained u/s 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.

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, vomiting, 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 lime, 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 be 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 ...

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 Commercial 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. 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;

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) 1 lb. 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 sub-rule (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 :-

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.

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.

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.

Petition dismissed.