P. Thenmozhi vs Secretary to Government, Prohibition and Excise Department and others

The wife of the detenu is the petitioner herein. P. P. Palani also Palanichamy alias M. Palani is the detenu. The habeas corpus petition is to call

for the records in proceedings Memo No. 231/BDFGIS/95 dated 7-8-1995 passed by the 2nd respondent and to quash the same under Art. 226

of the Constitution of India directing the respondents to produce the petitioner''s husband Mr. P. Palani before this Court for setting him at liberty

forthwith.

The order of detention was passed on 7-8-1995. One Tr. Mohanraj, aged 30 son of Munisamy residing at No. 4, Parthasarathi Street,

Pulianthope, Madras-12 gave a complaint before the Inspector of Police, Prohibition Enforcement Wing, Pulianthope. In his petition he has stated

that on 1-8-1995 at 5 p.m. at 10th Block, Periyar Nagar, Pulianthope, Madras he consumed I.D. arrack one glass sold by Tr. P. P. Palani by

paying Rs. 10 /- to him. He did not take anything thereafter and reached home at 19 hours. Immediately he developed giddiness, irritation in his

eyes, vomiting and lost his consciousness. He regained his conscious only on 2-8-1995 and enquired his wife as to what had happened to him. She

explained about his vomiting and loss of consciousness and that native treatment given to him. Hence Mohanraj was convinced and there must be

some poisonous substance mixed in the I.D. arrack sold by Tr. Palani. After observing the formalities on 2-8-1995 at about 17 hours the

Inspector of police, Prohibition Enforcement Wing, Pulianthope Unit, Madras along with his police party conducted a prohibition raid at the place

where the detenu is residing, and conducting a search at the spot. He recovered a five litre plastic can with 4 liters of I.O. arrack, two plastic

tumblers smelling I.D. arrack and a sum of Rs. 37/- being the sale proceeds. Thereafter he registered case in Cr. No. 129/95 under S. 4(1)(i) of

the Tamil Nadu Prohibition Act. 1937 and he took the matter for investigation. The Inspector of Police deposited the seized properties before the

5th Metropolitan Magistrate, Madras. He also gave a requisition to forward one of the sample bottles taken by him for chemical analysis to the

Assistant Director, Forensic Science Laboratory, Madras 5. The Chemical Examiner''s report has been received. It shows that the country arrack

sold by Palani contained ethyl alcohol ,acids, easters, higher alcohol and aldehydes. It is I.D. arrack mixed with atrophine, a poisonous substance.

The report further shows that it contains 13% mg. w/v of atrophine. During the investigation the Inspector of Police also examined Dr.

Punniyanathan, Police Surgeon, Government Police Hospital, St., Thomas Mount, Madras. He issued a certificate to the effect that atrophine is an

intoxicating poisonous substance and consumption of the same mixed with I.D. arrack will cause danger to public health and life. The Inspector of

police arrested Tr. P. P. Palani alias Palanichamy alias Palani on 4-8-1995 at 14.00 hours and examined him. His statement was recorded. He

was produced before the V Metropolitan Magistrate, Egmore and lodged at Central Prison, Madras as remand prisoner. The investigation is not

yet over.

Before us, learned counsel for the petitioner submitted that according to the statement made by Dr. Punniyanathan he gave the certificate that if

I.D. arrack mixed with poisonous substance was consumed, that would endanger the public health and life. If the certificate given by the said

doctor examined Mohanraj before issuing the certificate. It was, therefore, submitted that there is no connection between the certificate issued by

the Government Doctor and the signs and symptoms suffered by Mohanraj that he consumed. I.D. arrack with poisonous substance sold by the

detenu. Therefore, learned counsel submitted that the order of detention based upon such a certificate issued by the doctor would vitiate the

detention. We have also heard learned Public prosecutor for the State. Learned Public Prosecutor while supporting the detention order pointed out

that the certificate issued by Dr. Punniyanathan relates to the said Mohanraj. But, the fact remains that the statement made by Dr. Punniyanathan

before the Inspector of Police would go to show that he has not examined the said Mohanraj before issuing the certificate. Therefore, on the basis

of the medical certificate without examining the person, no conclusion can be arrived at that the said person consumed I.D. arrack mixed with

poisonous substance by the detenu. No nexus has been established between the selling arrack with poisonous arrack by the detenu and the

consumption of the I.D. arrack mixed with poisonous substance by the said Mohanraj. Therefore, on the basis of the said certificate, detention is

not possible under the Act. Accordingly, the order of detention passed without proper medical certificate vitiates the order of detention. In that

view of the matter, the detention order passed in Memo No. 231/BDFGIS/95 dated 7-8-1995 by the Commissioner of Police, Madras City, the

2nd respondent, against the detenu stands set aside.

In the result, the habeas corpus petition is allowed, the impugned order of detention is set aside and the detenu is directed to be set at liberty

forthwith unless he is required for any other cause.

Petition allowed.