Kala vs Commissioner of Police (Madras City), Madras and Others

S. Natarajan, J.—This writ petition under Art. 226 of the Constitution of India, for the issue of a writ of habeas corpus has been failed by

the wife of the detenu by name Lakshmanan. The Commissioner of Police, the first respondent herein, passed an order of detention against the

detenu under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum

Grabbers Act, 1982 (Act 14 of 1982), hereinafter referred to as the Act, on 15-4-1983. The grounds were furnished to the detenu within the

prescribed time. The detention order was approved by the Government on 27-4-1983. Subsequently, the Government confirmed the order of

detention. Thereafter the matter was referred to Advisory Board and the Board also found justification for the passing of the order of detention. It

is long thereafter the petitioner has come forward with this petition to seek the release of her husband.

The ground on which the order of detention was passed against the detenu is to following effect : One Kannappa sent a petition on 13-12-1982

to the Deputy Commissioner of Police, Prohibition, Egmore, Madras 8, stating that on 10-12-1982, he had purchased arrack from the detenu and

consumed it and soon he became sick to a degree of alarm. Since he was accustomed to drinking arrack, he realised that the arrack purchased by

him from the detenu should have contained some deleterious substance and it was on account of that he had experienced symptoms of sickness.

He therefore felt it his duty to bring this fact to the notice of the authorities. The petition sent by Kannappa was sent to the Sub-Inspector of Police,

Thiru Narayanaswami of North Raiding party for further action. The said Sub-Inspector conducted a raid at about 3 p.m. on 16-12-1982. He

caught the detenu redhanded selling illicitly distilled arrack. The detenu was arrested and the arrack was seized. The sample of the arrack was sent

for chemical analysis and the analysis revealed that the arrack contained ethyl alcohol, acids, esters, high alcohols and aldehydes. The Chemical

Examiner gave his report that the arrack contained chloral hydrate 992 mg%. The Police Surgeon and the Professor of Forensic Medicines,

Madras, was asked to give his opinion and he stated that chloral hydrate is a poisonous substance and it is injurious to health. A case was

registered against the detenu and was being investigated. It is with reference to that instance the first respondent passed the order of detention,

under the Act, stating that the detenu is a bootlegger, who was engaged in selling illicit liquor containing poisonous substance and the sale of such

arrack is likely to cause widespread danger to life and public health and therefore he was satisfied that the detenu should not be allowed to remain

at large, as otherwise, there was grave danger to the maintenance of public order. He also opined that prosecution under normal criminal law

would not be effective and therefore the order of detention was imminently called for.

The learned counsel for the petitioner assails the order of detention on the following grounds :

(1) The grounds of detention refer to three instances in respect of each of which the detenu was apprehended for an offence under the Prohibition

Act. The occurrences are said to have taken place on 18-10-1980, 23-9-1982, and 14-4-1983. The counsel would say that stale and irrelevant

materials have been taken into consideration by the first respondent for reaching subjective satisfaction for passing the order of detention and

therefore the detention order suffers from the vice of reference to irrelevant and stale material.

(2) On the date the detention order was passed, the detenu had already been taken into custody in connection with instance No. 3, mentioned in

detention order. But this fact had not been taken note of by the detaining authority and he had failed to consider whether in spite of the detenu

being in custody, an order of preventive detention was called for.

(3) It is not clear whether the first respondent has passed the order of detention on the basis of the instance or on the basis of several instances

contained in the grounds of detention.

(4) The first respondent had not sent the relevant materials forthwith to the Government along with a copy of the order of detention and this

amounts to contravention of S. 3(3) of the Act.

(5) The Government have passed the order on approval beyond the permitted period of 12 days and therefore the detention of the detenu with

effect from 27-4-1983 is illegal.

(6) The detention order passed by the first respondent does not specify the period of detention and this is a contravention vitiating the validity of

the order; and

(7) There has been inordinate delay in considering the representation made by wives of the detenu the delay being 48 days, and on that score

alone, the detention of detenu has become illegal.

Taking up the several grounds in seriatim, we find that none of the grounds has any merit in it. The first ground relates to the order having been

passed on the basis of irrelevant materials, to wit, taking into account a stale material. This argument completely overlooks the text of the grounds

of detention. In the grounds three instances are no doubt referred to. But it has been specifically stated. ''The ground on which the said detention

has been made is as follows :

''then there is reference to the petition sent by Kannappa about the sale of arrack containing deleterious substance by the detenu and about the

petition being forwarded for enquiry and about the raiding party catching the detenu redhanded with ID arrack and about the arrack being sent for

chemical analysis and the arrack being found to contain poisonous substances like chloral hydrate etc. Therefore, on a reading of the grounds of

detention, there can be no doubt whatever that the order of detention has been passed solely with reference to the sale of arrack containing

poisonous substances by the detenu on 10-12-1982. The other instances mentioned in the ground of detention referring to the detenu being

arrested on 18-10-1980, 23-9-1982 and 14-4-1983, have been set out only to make the record complete. In fact, the first respondent has clearly

stated in his counter affidavit, that only the case relating to HRP Crime No. 4905 of 1982 was taken into consideration for the purpose of passing

the order of detention and other instances have been referred to ''for bad history''. In view of the clear manner in which the ground of detention is

worded and the categorical statement made by the first respondent that the order of detention was not passed with reference extraneous or stale

materials we do not find any merit in the first contention of the petitioner''s counsel.

The second submission relates to the order of detention being passed without the first respondent being aware of the arrest of the detenu at 2

a.m. On 14-4-1983, by the Inspector of police, North Raiding party. The first respondent has stated in his counter affidavit that he was fully aware

that the detenu was a remand prisoner at the time the order of detention was served on him on 15-4-1983. We are unable to find any substance in

the contention of the petitioner''s counsel that if the fact of the detenu being in custody had been noticed by the first respondent, he would not have

passed the order of detention. He fails to see that the detenu had been arrested only at 2 a.m. on 14-4-1983, and he would have to be sent for

remand in the course of the day and there was every possibility of the detenu coming out on bail. In such circumstances, the mere fact that the

detenu had been arrested earlier would not have made any impact on the mind of the first respondent in so far as the passing of the detention order

is concerned. The petitioner''s counsel cites Vijay Kumar Vs. State of Jammu and Kashmir and Others, , in support of his argument. But that was a

case where the order of detention had been passed when the detenu was in jail for a period of more than a fortnight and that too in connection with

a serious offence with which he was charged. In the present case, the first respondent was aware of the arrest of the detenu the previous day and

therefore it can never be said that he had passed the order without knowing the fact of the detenu being in custody at the relevant time.

In so far as the third ground is concerned, there is absolutely no basis for the learned counsel to contend that the first respondent is not clear in

his statement whether he had passed the order with reference to one instance or with reference to several instances. As already stated, the grounds

of detention makes, a pointed and emphatic reference to one instance only and the matter is further set at rest by the categorical statement of the

first respondent in his counter affidavit. There is therefore no scope for an argument that the subjective satisfaction reached by the first respondent

is of a doubtful nature and on that score the order of detention suffers from an infirmity.

The fourth ground of attack is raised on a fallacious premise. Sub-section (3) of S. 3 of the Act enjoins a duty on the detaining officer to report

forthwith the fact of detention to the State Government together with the grounds on which the order has been made. It is further stated that the

other particulars if any which in the opinion of the officer have a bearing on the matter should also be forwarded to the Government. The direction

would not, however, mean that the other particulars referred to in sub-section (3) must mandatorily be sent by the officer along with the copy of

the order of detention to the State Government and the grounds on which the order has been made. The learned counsel fails to see that the order

of detaining officer has operative force for 12 days and the direction contained in sub-section (3) is mainly intended to ensure the prompt reporting

of the passing of an order of detention to the Government. We are therefore clearly of opinion that the failure to send the other particulars, if any,

along with the copy of the order of detention to the Government cannot affect the validity of the detention order in any manner.

Yet another misconstruction of S. 3(3) by the detenu''s counsel has prompted him to advance an argument that the Government ought to have

approved the detention order within 12 days i.e. on or before 26-4-1983, but since the order has been made on 27-4-1983, the entire detention

becomes invalid. Sub-section (3) of S. 3 of the Act reads as follows :-

''3(3) When any order is made under this section, by an officer mentioned in sub-section (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, as, in his opinion, have a bearing on the

matter, and no 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.''

According to the counsel, the date on which the order was passed must also be taken into consideration in computing the period of 12 days

mentioned in the sub-section and viewed in that manner, the order of approval must have been passed at the latest on 26-4-1983, and not later.

We cannot countenance this argument because the words used are ''twelve days after the making thereof''. S. 9(b) of the Tamil Nadu General

Clauses Act lays down -

9(b) In any act to which this Chapter applies commencement of term for the purpose of excluding the first in series of days or any other period of

time, it shall be sufficient to use the word ''from''.

Instead of the word ''from'', a more expressive term, viz, ''after the making thereof'' has been used in sub-sec (3) of S. 3 of the Act. Therefore, it

follows that the date on which the order of detention was passed has to be excluded and the period of 12 days calculated only from the next day

onwards. We are fortified in taking this view by two authorities.

In T.C. Basappa Vs. T. Nagappa and Another, the Supreme Court had to consider Rule 119 of the Election Rules framed under the

Representation of the People Act. That rule provided that an election petition against a returned candidate should be presented at anytime after the

publication of the name of such candidate under S. 67 of the said Act, but not latter than 14 days from the date of publication of notice in the

official gazette. Considering the said rule, the Supreme Court held that in computing the period of 14 days, the date of publication is not to be

included.

Another decision is Srinivasa Silk Mills, Seshadripuram v. State of Mysore AIR 1962 Mys 117, in which a Bench of the Mysore High Court

has observed as follows (at P. 123) :-

It is well settled principle that the word ''from'' is akin to ''after'' and that the word ''from'' if used for the purpose of and in reference to the

computation of time, as for example, from a stated date, that stated date is prima facie excluded from computation.

We are therefore of the view that there is no basis for contending that the order of approval has been passed beyond the prescribed limit of 12

days.

The next submission of the counsel is again based on a misconception of sub-sec (2) of S. 3 of the Act. The period referred to in sub-section

(2) has no relation to the period of detention of the detenu. On the other hand, it has reference to the duration of time for which the Government

can delegate their powers to a District Magistrate or Commissioner to exercise the powers of detention under the Act, subject to the approval of

the order of detention by the Government themselves, within the period mentioned in sub-sec (3). It is therefore wholly wrong to say that the first

respondent authority should have mentioned the period of detention in the order of detention itself and since he has failed to notify the period, the

order of detention is vitiated.

The last submission made is that when the wives of the detenu made a representation, it was disposed of by the Government after a delay of

48 days. The contention has been advanced without taking note of the nature of the petition sent by the wives. In their petition they did not

question the validity of the order of detention, passed against their husband. They only pleaded for mercy and wanted the Government to release

the detenu on the strength of property security offered by them, as a sort of guarantee to ensure the good conduct of the detenu in future.

Therefore, it was in the nature of a mercy petition and not a representation made against the order of detention. Hence, the submission that there

had been inordinate delay in considering the representation and in view of that the detenu is entitled to an order of release cannot be accepted.

Lastly it was submitted by the petitioner''s learned counsel that the detenu has got only three weeks to serve the full term of one year and at

least this period may be waived and he may be set at liberty. Since the detention of the detenu is preventive in character and not punitive, the

question of reducing the period of punishment does not arise. Once the order of detention has been passed, the full period of detention has to be

undergone unless the Government revoke the order of detention or modify it in exercise of their powers under S. 14 of the Act.

In the result, we find that the writ petition to be devoid of merits and substance and therefore the petition will stand dismissed.

Petition dismissed.