IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30/01/2006 CORAM THE HON'BLE MR. JUSTICE P. SATHASIVAM AND THE HON'BLE MR. JUSTICE J.A.K. SAMPATH KUMAR HCP.No.1073 of 2005 and HCP. No.1076 of 2005 Radhika .. Petitioner in HCP.No.1073/05 Kousalya .. Petitioner in HCP.No.1076/05 -Vs- 1. The Secretary to Government Prohibition and Excise Department Fort St. George Chennai 9. 2. The Commissioner of Police Greater Chennai Egmore, Chennai 600 008. .. Respondents in both the HCPs.
Petitions filed under Article 226 of the Constitution of India
praying for issuance of writ of habeas corpus as stated therein.
For petitioners :Ms. R. Subadradevi
for Mr. V. Sakthivel
For respondents :Mr. Abudukumar Rajarathinam
Government Advocate (Crl.side)
:COMMONN ORDER
(ORDER OF THE COURT WAS MADE BY 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 under Section 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.
2. 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 under Section 3(1) of the Tamil Nadu Act
14 of 1982, challenges the same in HCP.No.1076 of 2005.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
Index:Yes
Internet:Yes
Kh
To
1. The Secretary to Government
Prohibition and Excise Department
Fort St. George
Chennai 9.
2. The Commissioner of Police
Greater Chennai
Egmore, Chennai 600 008.