Radhika and Kousalya vs The Secretary to government, Prohibition and Excise Department and The Commissioner of Police

P. Sathasivam, J.—The petitioner by name Radhika, wife of the detenu Sivamani, detained under detention order dated 05.08.2005 made in

Memo No.398/2005 of the second respondent, as Bootlegger u/s 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers,

Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (in short ""Tamil Nadu Act

14 of 1982""), challenges the same in HCP.No.1073 of 2005.

The petitioner by name Kousalya, wife of the detenu Kumar, detained under detention order dated 05.08.2005 made in Memo No.399/2005

of the second respondent, as Bootlegger u/s 3(1) of the Tamil Nadu Act 14 of 1982, challenges the same in HCP.No.1076 of 2005.

The learned counsel appearing for the petitioners at the foremost submitted that in view of discrepancy in the number of sample bottles sent for

chemical analysis as found in the grounds of detention, requisition letter of the sponsoring authority and the report of the Forensic Science

Laboratory, the detention orders are liable to be interfered with.

Regarding the said contention, we verified the relevant details in para 3 of the grounds of Detention in both the HCPs., requisition letter of the

Inspector of Police (available at page 72 of the paper book), report of Forensic Science La hennai-5 dated 28.07.2 005, addressed to the Judicial

Magistrate No.II, Ponneri (available at page 78 of the paper book). It is seen from the materials placed that the Police party noticed three

polythene bags and each of them contained about 40 liters of I.D. arrack with irritating smell. The said 120 liters of I.D. arrack along with a sum of

Rs.50/- being the sale proceeds and a glass tumbler were seized. It is also seen from the grounds that samples of about 500 ml. were taken in two

bottles from each of the polythene bags, sealed and labelled at the spot itself. It is stated in the same paragraph that the Inspector of Police

deposited the seized properties before the Court and made a requisition to the concerned Judicial Magistrate to forward ""one of the sample bottles

for chemical analysis out of six seized."" In the requisition letter, the sponsoring authority has stated that totally six sample bottles taken from three

polythene bags were forwarded to the Assistant Director, Forensic Science Laboratory, Chepauk, Chennai with a request to ascertain the proof of

poisonous substance and issue certificate for the same. In the report dated 28.07.2005, the Laboratory has also referred 3 sample bottles. In other

words, it is clear that from the seized three polythene bags samples of about 500 ml was taken in two bottles from each of the polythene bags and

out of those samples, three bottles were sent for chemical analysis through Judicial Magistrate. By reading the details furnished in para 3 of the

grounds of detention, requisition letter dated 23.07.2005 of the sponsoring authority and the report of the Forensic Lab dated 28.07.2005, we are

satisfied that there is no discrepancy at all as claimed by the learned counsel for the petitioners. Accordingly, we reject the said contention.

The learned counsel for the petitioners further contended that inasmuch as the detenus were not furnished with the copy of the order of the

Judicial Magistrate, forwarding the sample bottles to the Forensic Science Laboratory, the ultimate order is liable to be quashed. She also relied on

a decision of this Court dated 18.03.2005 rendered in HCP.No.173 of 2005. The reading of requisition of the sponsoring authority dated

23.07.2005 (available at page 72 of the papers book) makes it clear that after taking the samples and after affixing proper seal, the same were

forwarded to the Forensic Science Laboratory through Judicial Magistrate No.II, Ponneri. In addition to this, the perusal of the report of the

Forensic Science Laboratory dated 28.07 .2005 also makes it clear that they received those samples as per the letter No.1770/05 dated

26.07.2005 of Judicial Magistrate No.II, Ponneri and the same were brought by Head Constable No.514, Ponniyan. The said letter also certifies

that they received 3 sample bottles with proper seal. In such a circumstance, we are of the view that firstly it cannot be contended that without the

order of the Judicial Magistrate, the samples had been sent to the Forensic Laboratory and secondly, because of the absence of copy of the order

of the learned Magistrate, the detenus were prejudiced in making representation. We are of the view that samples have to be taken by adhering to

strict procedure. The same must be affixed with proper seal and on the orders of the Court, the same has to be sent to the Forensic Laboratory.

On perusal of the materials available at pages 72 and 78 of the paper book, we are clear that only on the orders of Judicial Magistrate No.II,

Ponneri, (by letter No.1770/05 dated 26.07.2005), the samples were sent to the Laboratory. Accordingly, the above decision relied on by the

learned counsel for the petitioners, which is not directly on the point, is not helpful to them.

Further, the learned counsel for the petitioners submitted that in the case of Sivamani, detenu in HCP.No.1073 of 2005, there was delay in

disposal of his second representation. It is not in dispute that the first representation of the said detenu was duly considered and orders were

passed without any delay. According to the learned counsel only in considering the second representation, there was delay. We verified the

particulars furnished by the learned Government Advocate. The second representation dated 23.09.2005 was received by the Government on

26.09.2005; remarks were called for on the next day i.e., on 27.09.2005; remarks were received on 30.09.2005; thereafter, the file was dealt

with by Under Secretary and the Deputy Secretary on 03.10.2005 and finally the Minister for Prohibition and Excise, passed an order on

04.10.2005. However, the rejection letter was prepared on 10.10.2005, the same was sent to the detenu on 13.10.2005 and the said letter was

served on the detenu on 14.10.2005. Though it is stated that the authorities were not justified in taking 6 days'' time for the preparation of rejection

letter, if we exclude the Government holidays inclusive of public holidays, it cannot be claimed that there was undue delay on the part of the

authorities. As said earlier, it is not in dispute that the first representation of the detenu was duly considered and rejected without any delay. We are

satisfied that even in respect of second representation there was no undue delay as claimed by the learned counsel for the petitioners. Accordingly,

we reject the said contention.

Finally, the learned counsel for the petitioners submitted that pages 51 and 69 of the paper book supplied to the detenu are not legible and

readable. We verified the same and we are satisfied that both pages are readable. Accordingly, we reject the said contention also.

In the light of what is stated above, we do not find any valid ground for interference. Hence, both the petitions are dismissed.