Madras High Court
M.Vanapetchi vs State Of Tamil Nadu on 30 January, 2023
HCP(MD)Nos.1031 to 1033 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.01.2023
CORAM
THE HON'BLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
H.C.P.(MD)Nos.1031 to 1033 of 2022
M.Vanapetchi .. Petitioner/ Wife of the Detenu
in H.C.P(MD)No.1031 of 2022
U.Vasanthi .. Petitioner/Wife of the Detenu
in H.C.P(MD)No.1032 of 2022
S.Mariyammal .. Petitioner/Wife of the Detenu
in H.C.P(MD)No.1033 of 2022
Vs.
1.State of Tamil Nadu,
Rep. by the Additional Principal Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The District Collector and District Magistrate,
Thoothukudi District,
Thoothukudi.
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HCP(MD)Nos.1031 to 1033 of 2022
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli. .. Respondents
in all cases
PRAYER in H.C.P(MD)No.1031 of 2022: Petition filed under Article 226
of the Constitution of India to issue a writ of Habeas Corpus, to call for the
records connected with the detention order passed in H.S(M)Confdl.No.111
of 2022 dated 04.06.2022 on the file of the 2nd respondent herein and quash
the same and to direct the respondents to produce the detenu or body of the
detenu, the petitioner's husband, namely, Manikandan, son of Esakkimuthu,
aged about 29 years, now detained at the Central Prison, Palayamkottai,
before this Court and set him at liberty forthwith.
PRAYER in H.C.P(MD)No.1032 of 2022: Petition filed under Article 226
of the Constitution of India to issue a writ of Habeas Corpus, to call for the
records connected with the detention order passed in H.S(M)Confdl.No.110
of 2022 dated 04.06.2022 on the file of the 2nd respondent herein and quash
the same and to direct the respondents to produce the detenu or body of the
detenu, the petitioner's husband, namely, Uchimakali, son of Shanmugaiah
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HCP(MD)Nos.1031 to 1033 of 2022
Thevar, aged about 45 years, now detained at the Central Prison,
Palayamkottai, before this Court and set him at liberty forthwith.
PRAYER in H.C.P(MD)No.1033 of 2022: Petition filed under Article 226
of the Constitution of India to issue a writ of Habeas Corpus, to call for the
records connected with the detention order passed in H.S(M)Confdl.No.112
of 2022 dated 04.06.2022 on the file of the 2nd respondent herein and quash
the same and to direct the respondents to produce the detenu or body of the
detenu, the petitioner's husband, namely, Sudalaimani, son of Sivan, aged
about 33 years, now detained at the Central Prison, Palayamkottai, before
this Court and set him at liberty forthwith.
In all cases:
For Petitioner : Mr.N.Pragalathan
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
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HCP(MD)Nos.1031 to 1033 of 2022
COMMON ORDER
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
These three Habeas Corpus Petitions are filed on behalf of the
accused persons. They were found selling banned tobacco products and
IMFL liquor bottles of various brands to school and college students. Based
on the information, the shop run by one Uchimakali with the help of his
employees Manikandan and Sudalaimani was searched on 28.05.2022 at
about 9.30 a.m and the following banned tobacco products and IMFL liquor
was seized.
Sl.No. Banned item Quantity Weigh
1. Ganesh Tobacco 51 pouch 300gms each
2. Bullet Rani Panparak 99 pouch 60 pockets each
3. High Voltage Beer Bottles 34 numbers --
4. SNJ 10000 beer bottles 2 numbers --
5. Honey Day Brandy beer bottles 11 180 ml each
2. The detenues Manikandan and Sudalaimani have antecedent of
previous cases of similar nature whereas Uchimakali, the owner of the shop,
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HCP(MD)Nos.1031 to 1033 of 2022
has come to adverse notice for the first time. The detaining authority, after
considering the material placed before him and being satisfied that the
accused persons are selling banned tobacco products to the minors to enrich
themselves and thereby creating fear among the people, had branded them
as 'Drug Offenders' and detained them under Act 14 of 1982.
3. We heard the learned counsel appearing for the petitioner and the
learned Additional Public Prosecutor appearing for the respondents. We
have also perused the records furnished to the detenu at the time of his
detention.
4. The learned counsel for the petitioners submitted that the
definition of 'Drug Offender' as found in Section 2(e) of the Tamil Nadu Act
14 of 1982 does not cover offence under the Cigarettes and other Tobacco
Products (Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act, 2003, (hereinafter
referred to as the 'COTPA' Act) and further submitted that in the light of the
recent Judgment of the Division Bench of this Court, the prosecution under
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the COTPA Act itself is not sustainable. Further, the learned counsel for the
petitioners submitted that inspite of the request to furnish the copy of the
Tamil version of the remand order, the detaining authority failed to furnish
the Tamil version of the remand order which has caused prejudice to the
detenues to make effective representation.
5. Section 2(e) of the Tamil Nadu Act 14 of 1982 defines 'Drug
Offender' as under:
“2(e) "drug-offender" means a person, who
manufactures, stocks, imports, exports, sells or
distributes any drug or cultivates any plant or does any
other thing in contravention of any of the provisions of
the Drugs and Cosmetics Act, 1940 (Central Act XXIII
of 1940) or [“the Narcotic Drugs and Psychotropic
Substances Act, 1985 (Central Act 61 of 1985)”] and
the rules, notification and orders made under either Act,
or in contravention of any other law for the time being
in force, or who knowingly expends or applies any
money in furtherance or support of the doing of any of
the above mentioned things by or through any other
person, or who abets in any other manner the doing of
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HCP(MD)Nos.1031 to 1033 of 2022
any such things.”
6. The ground case arises out of the registration of FIR in Crime No.
224/2022 for the offence under Section 24(1) the COTPA Act, Section 4(1)
(a) of Tamilnadu Prohibition Act and Section 77 of the Juvenile Justice
(Care and Protection of Children) Act 2015. It is incorrect to contend that as
per the definition of 'Drug Offender', the detenues must have been
prosecuted if only for offence under the Drugs and Cosmetics Act or under
the NDPS Act.
7. The definition of 'Drug Offender' as found in Section 2(e) of the
Tamilnadu Act 14 of 1982, read above includes 'any other Act'. So the
contention of the learned counsel for the petitioners fails. We find the
ground case has invoked the penal provisions of the COTPA Act, 2003,
Tamil Nadu Prohibition Act, 1937 and the Juvenile Justice (Care and
Protection of Children) Act, 2015, no doubt, though the detenues were
found in violation of the Tamilnadu Prohibition Act, 1937, the subjective
satisfaction for detaining them under Act 14 of 1982 is only in respect of
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violation of the COTPA Act and the Juvenile Justice Act and not for
violation of the prohibition Act. If it is for Prohibition Act, the detenues
would have been also branded as 'Bootleggers' besides 'Drug Offenders'.
Failure to brand the detenu as 'Bootleggers' also will not vitiate the
detention order.
8. The learend counsel for the petitioners referring the recent
judgment of the Division Bench rendered in W.A(MD)No.2093 of 2018 etc.
on 20.01.2023 arising upon the appeal filed by the Designated officer, the
Food Safety & Drugs Control Department, Villupuram District vs.
Jayavilas Tobacco Traders LLP rep. by its Partner Mr.A.Prabaharan,
Chinna Salem canvass that no prosecution under the COTPA Act for
possession of Tobacco is not sustainable.
9. This Court, on going through the judgment cited find that this
judgment does not declare prosecution under COTPA Act is illegal. Infact,
the said writ petition filed challenging the order passed by the
Commissioner of Food Safety imposing ban and sale of gutka, pan masala
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and other chewable food products containing Tobacco or Nicotine
ingredients. In the said context, the Division Bench has observed that
Tobacco products are regulated under the COTPA Act and therefore, the
Commissioner of Food Safety has no jurisdiction to regulate Tobacco
products under the garb of food safety exercising power under Food Safety
Act.
10. Going by the verdict of the Division Bench, this Court finds that
if the regulation contemplated under the COTPA Act is violated, there is no
bar for the State to prosecute a person under the COTPA Act. As far as the
case in hand is concerned, the specific allegation against the detenues is that
they were in possession of prohibited Tobacco products and selling it to
minors which is contrary to Section 26 of COTPA Act and punishable under
Section 24 of the COTPA Act.
11. For convenient sake, both the provisions are extracted below:
“24. Punishment for sale of cigarettes or any other
tobacco products in certain places or to persons
below the age of eighteen years:-?
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(1) Any person who contravenes the provisions of
section 6 shall be guilty of an offence under this Act
and shall be punishable with fine which may extend to
two hundred rupees.
(2) All offences under this section shall be
compoundable and shall be tried summarily in
accordance with the procedure provided for summary
trials in the Code of Criminal Procedure, 1973 (2 of
1974).
26. Offences by companies:-
(1) Where an offence under this Act has been
committed by a company, every person who, at the
time the offence was committed, was in charge of, and
was responsible to, the company for the conduct of the
business of the company as well as the company shall
be deemed to be guilty of the offence and shall be
liable to be proceeded against and punished
accordingly
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(2) Notwithstanding anything contained in sub- section
(1), where an offence under this Act has been
committed by a company and it is proved that the
offence has been committed with the consent or
connivance of, or is attributable to any neglect on the
part of, any director, manager, secretary or other
officer of the company, such director, manager,
secretary or other officer shall also be deemed to be
guilty of that offence and shall be liable to be
proceeded against and punished accordingly.”
12. Besides COTPA Act, also Section 77 of the Juvenile Justice (Care
and Protection of Children) Act been invoked by the prosecution. For the
said reason, the contention of the learned counsel for the petitioners is held
unsustainable and there is no error in branding the detenues as 'Drug
Offenders'. Therefore, we do not find any error with regard to the
application of mind by the detaining authority.
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13. As far as the alleged violation of procedure, this Court finds force
in the contention raised by the learned counsel for the petitioners. From the
counter, this Court finds that the ground raised by the detenues that the
Tamil version of the remand order was not furnished to them appears to be
correct and failure to furnish the remand order has caused prejudice to the
detenues to make effective representation. It is admitted that the detenues
sought for Tamil version, but not furnished. Hence, on this ground, the
detention orders are liable to be quashed.
14. In the result,
(i) H.C.P(MD)No.1031 of 2022 is allowed and the order of detention
in H.S(M)Confdl.No.111 of 2022 dated 04.06.2022, passed by the second
respondent is set aside. The detenu, viz., Manikandan, son of Esakkimuthu,
aged about 29 years, is directed to be released forthwith unless his detention
is required in connection with any other case.
(ii) H.C.P(MD)No.1032 of 2022 is allowed and the order of detention
in H.S(M)Confdl.No.110 of 2022 dated 04.06.2022, passed by the second
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HCP(MD)Nos.1031 to 1033 of 2022
respondent is set aside. The detenu, viz., Uchimakali, son of Shanmugaiah
Thevar, aged about 45 years is directed to be released forthwith unless his
detention is required in connection with any other case.
(iii) H.C.P(MD)No.1033 of 2022 is allowed and the order of
detention in H.S(M)Confdl.No.112 of 2022 dated 04.06.2022, passed by
the second respondent is set aside. The detenu, viz., Sudalaimani, son of
Sivan, aged about 33 years, is directed to be released forthwith unless his
detention is required in connection with any other case.
[G.J.,J.] & [S.M.,J.]
24.01.2023
NCC : Yes/No
Index : Yes/No
Internet :Yes
PJL
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HCP(MD)Nos.1031 to 1033 of 2022
To
1.The Additional Principal Secretary to Government,
State of Tamilnadu,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The District Collector and District Magistrate,
Thoothukudi District,
Thoothukudi.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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HCP(MD)Nos.1031 to 1033 of 2022
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HCP(MD)Nos.1031 to 1033 of 2022
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
PJL
H.C.P.(MD)Nos.1031 to 1033
of 2022
30.01.2023
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