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Judgment
Swamidurai, J.—The Petitioners in all these cases were treated as Bootleggers as defined under S.2(b) of Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders and Slum Grabbers Act 1982(Act
14/82), (hereinafter referred to as ''the Act"") and they were all detained under S. 3(1) of the Act for a period of one year from the date of
detention.
The Petitioners have challenged the order of detention on various grounds, inter alia that the Detaining Authority has not considered the fact that
the Sponsoring Authority has taken sample of arrack in only one bottle or in two bottles and sent one or both the bottles as the case may to the
Forensic Science Laboratory for analysis and report. It is not disputed that the Sponsoring Authority has received the report from the Forensic
Science Laboratory and submitted the same to the Detaining Authority for his subjective satisfaction, in all these cases, the Detaining Authority has
received the report from the Forensic Science Laboratory and on his subjective satisfaction, he passed the order of detention. The Petitioners in all
these cases, have challenged the legality of taking of the sample in one bottle in some cases and in some other cases in two bottles but sending both
for Analysis and the receipt of the report from the Forensic Science Laboratory. According to the Petitioners, the Sponsoring Authority should
take sample in two bottles and send the same to the Magistrate''s court and who in turn shall send one such sample to the Analyst for his report
and the other sample retained in the Magistrate''s court should be made available for test by the Laboratory if and when the other sample sent to
the Forensic Science Laboratory is challenged later on by the detenu. In all these cases, the sample taken in one bottle or in two bottles were sent
to the Forensic Science Laboratory and no sample was left in the Magistrate''s court for test if the sample already sent to the Forensic Science
Laboratory is challenged later on. We have taken a decision in a large number of cases that the sponsoring authority has to take sample atleast in
two bottles and send one such bottle to the Forensic Science Laboratory for test and the other has to be kept in the court so that the detenu if he
would require to challenge the sample bottle sent to the chemical analyst and his report, the other sample bottle kept in the court could be taken for
test by the laboratory subsequently, if that procedure is not followed, we have held in a large number of cases that the procedure followed by the
Sponsoring Authority and accepted by the Detaining Authority is not correct and legal and therefore, we have quashed the order of detention in
those cases and directed release of those detenues form detention. We have also held in those cases that the detention order is illegal.
Learned Additional Public Prosecutor who did not demur to our earlier view, now submits that the view taken by us as stated above is not a
correct view. He wanted the matter to be argued at length and so we gave opportunity to both the learned Counsel appearing for the Petitioners on
one side and also the learned Additional Public Prosecutor on the other side and we heard the argument advanced by both the learned Counsel on
either side in all these cases. Before passing an order of detention u/s 3(1) or 3(2) of the Act, the person concerned should be a bootlegger within
the definition of Section 2(a)(i) and also Section 2(b) of the act. Section 2(a)(i) of the Act reads as follows:
Definitions: In this Act, unless the context otherwise required-
(a) ''acting in any manner prejudicial to the maintenance of public order, means-
(i) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect
adversely, of are likely to affect adversely the maintenance of public order.
S. 2(b) of the act reads as follows:
(b) ""bootlegger"" means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxication drug or
other intoxicant in contravention of any of the provisions of the Tamil Nadu Prohibition Act., 1937 (Tamil Nadu Act X of 1973) 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 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;
S. 2(c) of the Act reads as follows:
(c) ''detention order'' means an order made under S3;
Section 2(d) of the Act reads as follows:
(d) ''detenu'' means a person detained under a detention order;
S. 3 of the Act reads as follows:
Power to make orders detaining certain persons. (1) The State Government may, if satisfied with respect to any Bootlegger or Drug Offender of
Forest Offender or Goonda or Immoral Traffic Offender or Slum Grabber that with a view to prevent him from acting in any manner prejudicial to
the maintenance of public order, it is necessary to do so, make an order directing that such person be detained.
(2) If, haying regard to the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate
or a Commissioner of Police, the State Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such
period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section(1),
exercise the powers conferred by the said Sub-section:
Provided that the period specified in the order this Sub-section shall not, in the first instance, exceed three months, but the State Government may,
if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three
months at any one time.
(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, in his opinion, have a bearing on the matter,
and on 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.
Mr. P. Venkatasubramanian, learned Counsel for the Petitioners in HCP Nos. 545/92 and 714/93 submitted that as per definition of Section
2(b) of the Act, ''bootlegger'' means a person, who distills, manufactures, stores, transports, imports, 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 abovementioned things by or through any other person, or who abets in any other manner the doing of any such
thing. Therefore, Mr. P. Venkatasubramanian learned Counsel submitted that before a person can be termed as a ''bootlegger'', he must nave
contravened any of the provisions of Tamil Nadu Prohibition Act, 1937 by doing any act like distilling, manufacturing, storing etc., as per the
provisions of the Tamil Nadu Act, 1937 and the Rules, Notifications of any other law for the time being in force. Therefore, the Detaining Authority
has to find that the person has contravened any of the provisions of the Tamilnadu Prohibition Act, 1937 and thereby such contravention has come
within the definition of Section 2(b) of the Act. Therefore, to pass an order of detention u/s 3 of the Act, the person has to become a bootlegger
and before he becomes a bootlegger, he should have contravened any of the provisions of the Tamilnadu Prohibition Act, 1937.
The Tamilnadu Act 10 of 1937 received the assent of the Governor on the 1st October, 1937. The object of the Act reads
it was the intention of the legislature to curb the production, possession and use of liquor or intoxicating drug for all purposes other than medicinal,
scientific, industrial or such like purposes and it is made abundantly clear in the preamble to the Act.
As per Section 3(1-A) of TNP Act, ''Bottle'' means to transfer liquor from a cask or other vessel to a bottle, jar, flask or pot or similar receptacle
for the purpose of sale whether any process of manufacture be employed or not and includes rebottling. As per Section 3(9) of the TNP Act,
''liquor'' includes toddy, arrack, spirits of wine, denatured spirits, wine, beer and all liquid consisting of or containing alcohol, Section 32 of TNP
Act contains the relevant provisions to take samples of the liquor seized from the accused and sending the same for chemical analysis. It is for the
prosecution to prove that the article seized is liquor and the Court cannot take upon itself the role of prosecution and conclude the nature of the
contents of the article seized by smelling the same. Section 32 of TNP Act deals with the arrest of offenders and seizure of contraband liquor and
articles without warrant. Section 32 of TNP Act reads as follows:
S.32. Arrest of offenders and seizure of contraband liquor and articles without warrant: Any prohibition officer, any officer of the Police or Land
Revenue Department, and any other presort authorised in that behalf:
(a) May arrest without warrant any person found committing an offence punishable u/s 4. Sub-section (1) or Section 7 or Section 24, or any
offence punishable with rigorous imprisonment for three years and upwards.
(b) may seize and detain any liquor, drug, or other article which he has reason to deliver to be liable to confiscation under this Act.; and
(c) may search, any person, vessel, vehicle, animal, package, receptacle or covering, upon whom or in upon which, he may have reasonable cause
to suspect any such liquor, drug or other article to be, or to be concealed;
provided that if the officer or person making the arrest under this section be not capowered u/s 27 to admit to bail, the person arrested shall be
forthwith forwarded to an officer so empowered, if such an officer is known to be within a distance of five miles from the place where such arrest
took place. And it shall be the duty of such officer empowered as aforesaid to admit such person to bail if sufficient bail be tendered for his
appearance before a Police or Prohibition Officer or Magistrate having jurisdiction to inquire into the case.,
Provided further that where any toddy or wash or any sonti soru is seized under this Section by any officer or person, such officer or person may
destroy or cause to be destroyed on the spot, the toddy, wash or senti soru and send the pots or other receptacles in which the toddy, wash or
sonti soru and send the pots or other receptacles in which the toddy, wash or sonti soru was kept to the police or Prohibition Officer or Magistrate
having jurisdiction to inquire into the case.
Provided also that where any illicit arrack is seized under this Section by any officer or person, such officer or person may, in the presence of a
Prohibition Officer any Police Officer not below the rank of Inspector -
(i) take two samples of the illicit arrack of such quantity and in such manner as may be prescribed; and
(ii) destroy or cause to be destroyed the illicit arrack; and send the pots or other receptacles in which the illicit arrack was kept, together with
samples taken and a certificate from the Officer in whose presence the samples were taken and the illicit arrack was destroyed, as to the total
quantity of illicit arrack seized, the total quantity taken as sample and the total quantity destroyed, to the Magistrate having jurisdiction to inquire
into the case. The Magistrate, shall upon the receipt of the samples retain one in his Court and send the other to such officer as may be prescribed
for chemical analysis.
Mr. P. Venkatasubramanian, learned Counsel submitted that to bring a person within the definition of ''bootlegger'' as per Section 2(b) of the
Act, he must have contravened any of the provisions of TNP Act and if a person is stated to have contravened any of the provisions of TNP Act,
then the provisions of Section 32 of TNP Act have to be satisfied. The Legislature in its wisdom has incorporated the provisions under TNP Act
within the definition of ''bootlegger''. That means, unless a person contravend any of the provisions, of TNP Act, he cannot be termed as a
bootlegger. Therefore, there is no other provision excepting TNP Act and the rules, notification and orders made thereunder for dealing with a
person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor or other intoxicant. The Legislature has also in
its wisdom, other than TNP Act has included the words ''or in contravention of any other law for the time being in force''. Therefore, the provisions
of TNP Act and especially Section 32 of TNP Act have to be complied with.
Learned Additional Public Prosecutor, at this juncture, pointed out that the provisions of TNP Act and the Rules, Notifications any Orders
made thereunder have to be strictly followed especially in the case of criminal trial and in the case of preventive detention, such strict compliance, is
not at all necessary. He submitted that the subjective satisfaction of the Detaining Authority could be tested only on the ground of mala fide or on
the ground that no reasonable man would come to such conclusion. According to him, the evidence inadmissible in a Criminal trial can be relied
upon in a detention case and statements u/s 161, Code of Criminal Procedure Which are not admissible in Criminal trial, can be relied upon a
preventive detention case. He also pointed out that the confession of a detenu before a police officer even though not admissible in criminal trial,
can be relied upon in preventive detention and facts on which the Criminal prosecution failed, can be relied upon while passing a detention order.
He also submitted that even if the search and seizure are illegal, the evidence collected under such illegal search and seizure can be acted and relied
upon in a detention case. Learned Additional Public Prosecutor further submitted that the procedure in the TNP Act is different for punishing the
offenders and such procedure is not contemplated in a case off preventive detention and there is no right to the accused to request the Magistrate''s
Court to send one sample to the analyst and retain another sample in the Court itself in a case of preventive detention as envisaged u/s 32 of TNP
Act. Learned Additional Public Prosecutor pointed out the distinction in the Prevention of Food Adulteration Act and TNP Act. In the Food
Adulteration Act, if the accused is not satisfied with the report of the State analyst, he can request the Magistrate to send the other sample to the
Central Laboratory for analysis and that the opinion received from the Central Analyst has to be relied upon in preference to the report submitted
by the State Analyst. Therefore, according to the learned Additional Public Prosecutor, no such provision is made in TNP Act and, therefore, the
procedure contemplated u/s 32 of TNP Act cannot be invoked in a preventive detention case. In the preventive detention, suspicion and
reasonable probabilities of the detenu committing the offence, are necessary for proceeding under the detention laws and the subjective satisfaction
of the detaining authority is sufficient in the case of preventive detention whereas proof beyond reasonable doubt is necessary for punishing the
accused in a criminal trial and the satisfaction of the detaining authority cannot be reviewed at all. In support of his contention, learned Additional
Public prosecutor relied upon the certain decision which we will refer later on.
Section 32(c)(ii) of TNP Act states that the Magistrate, shall upon the receipt of the samples retain one in his Court and send the other to such
officer as may be prescribed for chemical analysis. This procedure of retaining one sample in court and sending the other sample to the Forensic
Science Laboratory for analysis has been followed in all the cases till recently. Mr. P. Venkata-sub-ramanian, learned Counsel for the Petitioners in
H.C.P. Nos. 545/92 and 714/93 relied upon the decision reported in Rajamanickam v. State (1961 M.W.N. Crl.169) wherein this Court
(Ramakrishnan, J.) has held that Section 32 of Prohibition Act is a safeguard which the statute has provided and it is necessary to enjoin upon the
police officers who make searches and recover fermented wash and the like that the Statutory provision should be complied with. The
circumstances that it has been held in Rajabather v. State (1959 M.W.N. Cr.125) that the omission to comply with the provision did not vitiate
trial should not be treated as an authority for making the statutory provision a dead letter. In that case, this Court held that the omission to comply
with the provision or section of the Prohibition Act will not vitiate the trial and convicting when the other evidence in the case had brought home the
offence to the accused beyond all reasonable doubt. In the decision reported in Muthukrishnan v. State (1961 M.W.N. Crl.189) this Court
(Veeraswami, J., as he then was) has held as follows:
It is permissible to draw an inference u/s 114 Evidence Act from certain external features and circumstances like the label and smell indicating the
nature of the contents of the bottles seized, the cork being intact and so forth that the contents are prohibited liquor. But when once a challenge is
made by an accused that the contents are not prohibited liquor and that no presumption should be drawn From the external features, it may then be
necessary to obviate all doubts at all stages of the trial to have the contents analysed and to put the nature of the contents beyond any possibility of
speculation.
It is for the prosecution to establish the case by evidence that the contents of the bottles were prohibited liquor and for that purpose it was
necessary to preserve them until the prescribed time. In examining the contents of the bottles himself and then ordering their destruction the
magistrate took upon himself the role of a prosecution witness which the court should not do.
Where a mahazar has been prepared and attested by witnesses it is desirable and in some cases it may even be necessary from the stand point of
the prosecution to examine at least one such witness in addition to the police officer who actually seized the materials.
In the decision reported in Khudiram Das Vs. The State of West Bengal and Others, and relied on by Mr. P. Venkatasubramanian, the learned
Counsel, their Lordships of the Supreme Court held that the ''grounds'' under Article 22(5) mean all the basic facts and materials which nave been
taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. Nothing less
than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu.
That is the plain requirement of the first safeguard in Article 22(5). The second safeguard in Article 22(5) requires that the detenu shall be afforded
the earliest opportunity of making a representation against the order of detention. The power of detention is clearly a preventive power. It does not
partake in any manner of the nature of punishment. The exercise of the power of detention u/s 3(1) & (2) of the Maintenance of Internal Security
Act, 1971 is made dependent on the subjective satisfaction of the detaining authority that with a view to preventing a person from acting in a
prejudicial manner, as set out in Sub Clauses (i), (ii) and (iii) of Clause (a) of Sub-section (1)? it is necessary to detain such person. The Supreme
Court in the above said decision has further held as follows:
The power of detention is not a quasi-judicial power. But the subjective satisfaction of the detaining authority is not wholly immune from judicial
review ability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction
can yet be subjected to judicial scrutiny .The basic postulate on which the courts have proceeded is that the subjective satisfaction being a
condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is
arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power
would be bad.
A law of preventive detention, which falls within Article 22, has also to meet the requirement of Article 14 or Article 19. Section 3 of the
Maintenance of lateral Security Act in so far as it empowers the detaining authority to exercise the power of detention on the basis of its subjective
satisfaction, however, does not impose unreasonable restrictions on the fundamental rights of the Petitioner detenu under Clauses (a) to (d) and (g)
of Article 19, and is not ultra vires and void"", (emphasis supplied)
In the decision reported in Ashadevi v.K. Shivraj reported in A.I.R.1979 S.C 447 which the learned Counsel Mr. P. Venkatasubramanian, relied,
the Supreme Court has observed as follows:
It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the
passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the
detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.
In that case, by a detention order the detenu was detained with a view to preventing him from engaging in transporting smuggled goods. In passing
the detention order the Detaining Authority based its decision on the detenu''s confessional statement made earlier before the Customs Officers.
The said confessional Statements were subsequently retracted by the detenu at the first available opportunity while he was in judicial custody. In
the above facts and circumstances of that case, the Supreme Court held as follows:
The questions whether the confessional statements recorded earlier were voluntary statements or were statements which were obtained from the
detenue under duress or whether the subsequent retraction of those statements by the detenu was in the nature of an afterthought, were primarily
for the detaining authority to consider before deciding to issue the detention order but since admittedly the aforesaid vital facts which would have
influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority, it was held
that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby
rendering the detention order invalid and illegal.
In the decision reported in Kamla Kanyalal Khushalani Vs. State of Maharashtra and another, , the Supreme Court observed that the documents
and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds
of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation
against the order of detention. Before an order of detention can be supported, the constitutional safeguards must be strictly observed. In view of
the decision in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , Article 22(5) of the Constitution assumes a new complexion and has
to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by
virtue of preventive detention. If a procedure under Article 21 has to be reasonable, fair and just, then the words ''effective representation''
appearing in Article 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining
authority in his representation. If the words ''effective representation'' are interpreted in an artificial or fanciful manner, then it would defeat the very
object not only of Article 22(5) but also of Article 21 of the Constitution.
Learned Additional Public Prosecutor relied upon the judgment reported in Shibban Lal Saksena Vs. The State of Utter Pradesh and Others,
wherein it is held by the Supreme Court that sufficiency of the particulars conveyed to a detenu in accordance with the provision embodied in
Article 22(5) of the Constitution is a justiciable issue, the test being whether they are sufficient materials to enable the detenue to make effective
representation. It is further held by the Supreme Court as follows:
The power to issue a detention order u/s 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority
specified in that section. The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative
value and are not extraneous to the scope of purpose of the legislative provision cannot be challenged in a Court of law, except on the ground of
mala fides. A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in
the communication to the detenu u/s 7 of the Act.
Where however the Government itself while confirming the detention in exercise of its powers u/s 11 admits that one of the two grounds mentioned
in the original order is unsubstantial or non-existent, to say that the other ground, which still remains is quite sufficient to sustain the order would be
to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the
statute. In such cases, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly
illusory and this would vitiate the detention order as a whole.
Learned Additional Public Prosecutor submitted that the non-prosecution of a person concerned for his past activities which amount to an offence,
would not operate as a bar to his detention u/s 3 of Maintenance of Internal Security Act. 1971 and for this proposition, he cited a decision
reported in Mohd. Subrati alias Mohd. Karim Vs. State of West Bengal, and the Supreme Court in the above decision observed as follows:
If for any reason it is not possible to successfully try and secure the conviction and imprisonment of the persons concerned for their past activities
which amount to an offence, but which are also relevant for the satisfaction of the detaining authority for considering it necessary that a detention
order u/s 3 be made for preventing such persons from acting in a prejudicial manner as contemplated by that section, then, the Act would
indisputably be attracted and a detention order can appropriately be made. The detention order in such a case cannot be challenged on the ground
that the person ordered to be detained was liable to be tried for the commission of the offence or offences founded on his conduct, on the basis of
which, the detention order has been made or that proceedings under Chapter VIII, Code of Criminal Procedure could be initiated against him.
Jurisdiction to make orders for preventive detention u/s 3 is different from that of judicial trial in courts for offences and of judicial orders for
prevention of offences. Even unsuccessful judicial trial or proceeding would not operate as a bar to a detention order or render it malafide. The
matter is also not res Integra
Learned Additional Public Prosecutor also relied upon the decision reported in Workmen Employed in Associated Rubber Industry Ltd.,
Bhavnagar Vs. Associated Rubber Industry Ltd., Bhavnagar and Another, . In that decision, the Supreme Court observed as follows:
Ss. 3 and 7 of Suppression of Immoral Traffic in Women and Girls Act provide for the punishment of persons guilty of the offences mentioned
therein. Any contravention of the provisions mentioned therein amounts to a cognizable offence in view of Section 14 whereas a proceeding under
S. 18 is in no sense a prosecution. It is a preventive measure, it is intended to minimise the chance of a brother being run or prostitution being
carried on the premises near about public places. The enquiry contemplated by Section 18 is summary in character. The attachment contemplated
by that section can ensure only for a period of one year, under these circumstances evidently the legislature thought that a regular trial and an
appeal against the order of the Magistrate is not called for.
The Supreme Court also observed that u/s 190(1)(b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any
cognizable offence brought to his notice. The words ''May lake cognizance'' in the context means ''must take cognizance''. He has no discretion in
the matter, otherwise that section will be violative of Article 14 of the Constitution. The Supreme Court also observed as follows:
Ss. 3 and 7 of the Act deals with persons guilty of offences whereas Section 18 deals with the premises mentioned therein. The set of facts to be
proved in prosecutions u/s 3 or ` and in proceedings u/s 18 are not identical. In the former, the prosecution to succeed has to establish either the
intention or knowledge referred to therein but in the latter they are not necessary ingredicts Section 18 provides for two classes of cases namely
(1) those coming either u/s 3 or 7 as well as u/s 18 and(2) those coming only u/s 18. They are two distinct classes of cases a classification which
has reasonable relationship with the object sought to be achieved and, therefore, the difference in two procedures prescribed does not amount to
discrimination under Article 14. Section 18 is not, therefore, ultravires as offending Article 14 of the Constitution.
In the decision reported in State of Punjab Vs. Sukhpal Singh, and relied on by the learned Additional Public Prosecutor, the Supreme Court
observed that u/s 3 of the National Security Act (65 of 1980), the registration of criminal prosecution against detenu is not a condition precedent
and preventive detention by way of anticipatory and precautionary action and on subjective satisfaction of State that detenue will indulge in
terrorists activities if released from jail in sufficient and preventive detention can be ordered notwithstanding that no criminal case is registered
against him. In the decision reported in Dr Partap Singh and Another Vs. Director of Enforcement, Foreign Exchange Regulation Act and Others, ,
the Supreme Court observed that Section 37(2) of Foreign Exchange Regulation Act (46 of 19/3) provides that the provisions of the code relating
to searches, shall so far as may be, apply to searches directed u/s 37(1) of Foreign Exchange Regulation Act. Reading the two sections together it
merely means that the methodology prescribed for carrying out the search provided in Section 165, Code of Criminal Procedure has to be
generally followed. The expression ''so far as may be'' has always been construed to mean that those provisions may be generally followed to the
extent possible. It cannot be said that Section 165 (1) of Code of Criminal Procedure has been incorporated by pen and ink in Section 37(2) of
F.E.R. Act, in view of the positive language employed in the Section that the provisions relating to searches shall so far as may be apply to
searches u/s 37(1) of F.E.R. Act. It merely provides that the search may be carried out according to the method prescribed in S. 165(1) of Code
of Criminal Procedure If the duty to record reasons which furnish grounds for entertaining a reasonable belief were to be recorded in advance ,the
same could have been incorporated in Section 37(1) of F.E.R. Act, otherwise a simple one line section would have been sufficient that all searches
as required for the purpose of this Act shall be carried out in the manner prescribed in Section 165 Code of Criminal Procedure by the officer to
be set in the section. In order to give full meaning to the expression ''so far as may be'', Sub-section (2) of Section 37 should be interpreted to
mean that broadly the procedure relating to search as enacted in Section 165, Code of Criminal Procedure shall be followed. But if a deviation
becomes necessary to carry out the purposes of the Act in which Section 37(1) is incorporated, it would be permissible except that when
challenged before a court of law, justification will have to be offered for the deviation.
Learned Additional Public Prosecutor also relied upon a decision reported in State of Bombay v. Atma Ram (A.I.R. 1954 S.C. 157). That
was a case of detention under Preventive Detention Act (IV of 1950) wherein the Supreme Court has observed as follows:
The satisfaction of the Government must be based on some grounds. There can be no satisfaction if there are no grounds for the same. If the
grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider
connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of
mala fides cannot be challenged in a court.... The question whether such ground can give rise to the satisfaction required for making the order is
outside the scope of the inquiry of the Court But the question whether the vagueness or indefinite nature of the statement furnished to the detained
person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the Court''s
inquiry and subject to the Court''s decision.
If the representation to be made by detenu contemplated by Article 22(5) has to be intelligible to meet the charges contained in the grounds, the
information conveyed to the detained person must be sufficient to attain that object. Without getting information sufficient to make a representation
against the order of detention, it is not possible ''or the man to make the representation. Indeed the right will be only illusory but not a real right at
all. The right to received the grounds is independent but it is intentionally bound up and connected with the right to make the representation.
In the decision reported in Smt. K. Aruna Kumari Vs. Government of Andhra Pradesh and Others, which the learned Additional Public
Prosecutor relied upon, the Supreme Court held as follows:
The Supreme Court while considering a detenu''s writ application is not sitting in appeal over the detention order and it is not for the Court to go
into and assess the probative value of the evidence available to the detaining authority. Of course, a detention order not supported by any evidence
may have to be quashed, but it cannot be so quashed when there was clearly sufficient material before the District Magistrate to justify the forming
of his opinion.
Besides, the detenu accepted the allegations against himself in his statement recorded u/s 161, Code of Criminal Procedure It is true that it may not
be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely
brushed aside on that ground for the purpose of his preventive detention.
In the same decision the Supreme Court further observed as follows:
The subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made,
namely, the grounds of detention constitute the foundation for the exercise of the power of detention and the Court cannot be invited to consider
the propriety or sufficiency of the grounds, on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the
grounds substitute its own opinion for that of the authority. The question whether the detenu was acting in a manner prejudicial to the maintenance
of supplies essential to the life of the community is a matter of inference to be drawn from facts.
If ''material and vital facts'' which would influence the mind of the detaining authority one way or the other on the question whether or not to make
the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. But it cannot be so where there
was ample material before the District Magistrate for him to base his subjective satisfaction as to the necessity for passing impugned order.
In a Full Bench judgment of this Court reported in Suman v. The State of Tamil Nadu (1986 L.W. (Crl.) 221) to which one of us (Venkataswami
J.) is a party it was held that the detention proceedings do not constitute either criminal proceedings or judicial proceedings and that the order is
executive in character, based on subjective satisfaction of the authority. The Full Bench further held that the confessional statement made by the
detenu to the police officer can be considered by the detaining authority as material relevant for making an order of dention against the maker of
the statement, but the weight to be attached to it is for the said authority to decide. The jurisdiction to detain by way of Preventive detention is a
jurisdiction of suspicion and is not based on proof of any offence or act beyond all reasonable doubt and neither the proceedings before the
detaining authority or before the Advisory Board can be held to be judicial or quasi-judicial in character, nor are they of a criminal or a quasi
criminal character. The decision reported in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, ) and relied upon
by the learned Additional Public Prosecutor is a case arising under Ss. 132 and 132-A of the Income Tax Act where the Supreme Court has
observed as follows:
The restriction placed by the provisions of Ss. 132, 132-A or R.112-A are not unreasonable restrictions on the freedoms under Article 19(1)(f)
and (g) of the Constitution.
The provisions of Ss.132(1)(5), 132A and R.112A are directed against persons who are believed on good grounds to have illegally evaded the
payment of tax on their income and property. Therefore, drastic measures to get at such income and property with a view to recover the
government dues would stand justified in themselves. In the interest of community it is only right that the fiscal authorities should have sufficient
powers to prevent large scale tax evasion.
The power to order search and seizures is vested in the highest officers of the department. Secondly the exercise of this power can only follow a
reasonable belief entertained by such officer that any of the three conditions mentioned in S.132(1) (a), (b) and (c) exists. The safeguards in Ss.
132, 132-A and R.112-A are adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the
circumstances. The provisions, therefore, relating to search and seizure in Section 132 and Rule 112 cannot be regarded as violative of Article
19(1) (f) and (g)''.
The Supreme Court further observed:
Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other
law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. The relevant evidence cannot be excluded merely on the
ground that it is obtained by illegal search or seizure.
Therefore, even assuming that the search and seizure were in contravention of the provisions of Section 132 still the material seized was liable to be
used subject to law before the Income Tax authorities against the person from whose custody it was seized and, therefore, no writ of Prohibition in
restraint of such sue could be granted.
The Supreme Court also further held as follows:
It therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any the fundamental rights can we spell
out the exclusions of evidence obtained on an illegal search.
Learned Additional Public Prosecutor, therefore contended that the practice of sending one bottle or two bottles for examination by Forensic
Science Laboratory has no legal fooling and that any violation of the same will not vitiate the order of detention. According to him as per the
decisions cited above, the evidence collected in the illegal search, can be used as evidence in the criminal proceedings. But the citations referred to
above by the learned Additional Public Prosecutor are in relation to criminal proceedings and it cannot be applied to a case of preventive
detention. Here, the provisions of Tamil Nadu Prohibition Act 1937 and the Rules, Notifications and Orders made thereunder are all inbuilt u/s
2(b) of the Act 14/1982 and the Legislature in its wisdom has incorporated the provisions of the TNP Act within the definition of ''bootlegger'' u/s
2(b) of the Act and the procedure of sending one bottle to the Forensic Science Laboratory and retaining another bottle in the Magistrate''s Court
is a safeguard to a citizen, as otherwise, there would be interference with the freedom guaranteed to a citizen under Arts. 19, 21 and 22 (5) of the
Constitution of India. In the decision. Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, , the Supreme Court held ""since all the
constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Article 22(5) read with
Article 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural
imperative must lead to the release of the detenu"". We are unable to agree with the contention of the learned Additional Public Prosecutor that the
procedure of sending one bottle or two bottles directly to the laboratory, cannot be invoked in the case of preventive detention. All the more it is
necessary because in a criminal case, there is opportunity to the accused to prove in defence by letting in oral and documentary evidence; whereas
in a case of preventive detention, there is no such opportunity for a citizen. The other limb of the argument of the learned Additional Public
Prosecutor is that in the detention case, only suspicion or reasonable probability is the ground and the repetition of illegal activities of the detenu has
to be prevented. Even in such cases, the procedure of sending one bottle to the Analyst and retaining another bottle in Court is not onerous and it
cannot be said that it is not possible to follow. There is no other separate Rule or provision framed under the Tamil Nadu Act 14/82 and therefore,
we have to take the procedure from the provisions of TNP Act for testing the sample as provided u/s 32 of TNP Act. Our constitution has
guaranteed the liberty of a citizen and freedom; but subject to certain preventive laws and even in such cases, there should be just, reasonable and
fair trial as pointed out in Menaka Gandhi''s case (Supra). We have also held in H.C.P. No. 52/92 and W.P. Nos. 11774 to 11776/92 that taking
of sample of arrack in one bottle or two bottles and sending them for examination by the Forensic Science Laboratory without retaining any bottle
in the Court, would vitiate the order of detention.-
In view of the discussion made above cases, we are of the opinion that the procedure u/s 32 of TNP Act has to be strictly followed even in the
case of preventive detention and any violation of the same, would vitiate the order of detention. In all the above cases, we are of the opinion that
the Sponsoring Authority has sent one or two bottles of samples from the seized contraband for Analyst''s report and that no sample was retained
in Court as per the provision of Section 32 of TNP Act. Therefore, we hold that the detention of the detenu in the respective cases is vitiated and
accordingly, the order of detention in the respective cases is quashed. All the petitions are allowed. The Respondents are directed to release the
detenue in the respective cases from custody forthwith unless they are liable to be detained in custody for some other cause.