AJIT KUMAR KAVLRAJ versus THE DISTT. MAGISTRATE, BIRBHUM AND ANR.

AJIT KUMAR KA VlRAJ

THE DISTT. MAGISTRATE, BIRBHUM AND ANR. September 6, l974 [P. JAGANMOHAN REDDY AND P. K. GOSWAMI, JJ.]

Preventive Detention-Duty of detaining authority to give unambig11ous.· grounds lo detemr-Procedural safeguards oj liberty-Duty to observe. ·

The petitioner was detained under s. 3 of the Maintenance of Internal Secu· rity Act, 1971. The grounds communicated to him were, (1) that on 28-1-1973 at about 4.30 p,m., he, as direct purchasing agent of the Food Corporation of India sold out 4 quintals of paddy from the stock held in the account of the Food Corporation of India to three persons and by such clandestine deal hindered the procurement of paddy and thereby acted in manner prejudicial to the mainten-an::e of supplies and services essential to the community; and (2) that on the same day at about 10.30 p.m. stpck of about 12 q,uintals of paddy was found in his godown and that he failed to justify the possession and that by such surrepti· tious business as direct purchasing agent he impeded the progress of procure-ment of paddy and thereby acted in manner prejudicial to the maintenance of supplies and services essential to the community. ·

In petitio11 under Art. 32, challenging the d~tention,

HEID .: ( 1 ) There was clear violation of Art. 22 ( S) as no adequate op-portunity had. been afforded to the petitioner to make .a proper representation, because, the grounds aire vague and uncertain and it is not reasonably possible for the detenu to make an effective representation against the order of detention. [22F-G] .

With refete~e to the first ground it is not ~!ear whether the three persons mentioned in the ground were authorised purchasers or nol The ground des-cribed the . tramaction as a1 clandestine deal, but it is not shown how the transaction can be so described without any particulars ·to justify such · an observation. Similarly, no. definite particulats are disclosed even to prima facie justify the observation that ·the finding of paddy in· hi! possession was surreptitious business. [23C-E]

(2) The petitioner submitted long representation to the Government. But it could not · be said that on that account that he fully understood the import of the allegations mentioned in the grounds. The validity of the impugned order cannot be decided in the light of the representation made by the petitioner. He might have given the representation because an F.I.R. was filed against him for prosecuting him under s. 7 of the Essential Commodities Act, l9SS, referring to the secpnd ground -Of detention and he might have come to know. the details in the course of the prosecution. Jn case of preventive detention it is absolutely necessary to communicate the . grooods of detention to the detenu in clear and ambiguous terms giving such particulars as will facilitate making of an effective representation that tile order is unfounded: It is exceedingly important, in the interest of liberty of the ci1izen that -the minimum requirements of law are strictly complied with and the cletainmg authority applies .its mind in pro~, mainlldr at the time of passing the order. [226'23C, FJ ·

(3) The order of the High Court dismissing the petition of the petitioner under. s. 491, Criminal ,Procedure Code, 1898, would not operate at rel Judlcata in an applir.ation before this Court under Art. 32. mo1 '

ORIGINAL JURISDICTION : Writ Petition No. 1880 of 1973. ·. Petition under Article 32 of the Constitution .of .India. H. C. Mittar, for the pe~oner. ·

P. K. Chatterjee, G. S. Chatterjee and Sukumar Basu, for

the

respondent.

The Judgment of the Gourt was deliven~ by

GOSWAMI, J.-By this application under Article 32 of the Constitu-tic!D for writ of habeas corpus the petitioner challenges the validity of the order of detention passed by the District Magistrate, Birbhum, on March 21, 1973, under section 3 of the. Maintenance of Internal Security Att. 1971 (Act No. 26 of 1971). The order of detention is passed on the ground that the petitioner has been acting in manner prejudicial tc1 the maintenance of supplies and services essential to the. community. The impugned order is specifically founded on two grounds communicated t1) the petitioner. These are as follows ~-

( ll "On 28-1-73 at about 4.30 P.M. you as Direct Pur-chasing Agent of the Food Ccirporation of India sold out 4 quintals of paddy from the stock held in the account of the F.C.I. to Sk. Subhan, Sk. Rakib and Sk. Ambur of Sahapur, P. S. Kl:Joyrasole and by such clandestine deal in paddy you hindered the procure-ment of paddy and thereby acted in manner pre-judicial tc1 the maintenance of :rnpplies · and services essential to the community". (:?.) "On 28-1-73 at about 10.30 P.M. stock of 12 qunt. 15 kg. of paddy was found in your godown but you . failed to show any record or ac1:ount bc1ok to justify the stock in your godown. By such surreptitious business as Direct Purchasing Agent you impeded the progress of procurement of paddy by the F.C.I. and thereby acted in manner prejudicial to the maintenance c~ supplies and services essential to the community".

Mr. H. C. Mittal, learned counsel for the petitioner appearing as amicus curiae, has made several submissions but it is sufficient to confine our decisic!Il to one principal ground, namely, that the grounds are so vague and uncertain that it is not reasonably pcissible for the detenu to make an effective representation against the order of deten-tion. Mr. Chatterjee, appearing on behalf of the State of West Ben-gal, seeks to support the order on the ground that the detenu fully understc1od the import of the allegations mentioned in the grounds of detention and submitted long representation to the Government which was, however, rejected. It is well settled that in case of pre-ventive detention under the Act it is absolutely necessary to communi· cate the grounds of detention to the deteriu in clear and unambiguous terms giving as much particulars .as will facilitate making of a.n effec-tive representation in order to satisfy the detaining authority that the order is unfounded or invalid.

Before we. proceed further we may note that the petitictier was arrested by the police l)n January 28, 1973, and was produced before

the Magistrate for prosecution under section 7(1)(a) (ii) of the Essen· tial Commodities Act, 1955 Act No. X ,of 1955 for violation of condi-tion of West Bengal Rice and Paddy MGvement Order 1968. The first information report of that case being Khoyrasole P. S. No. 10 dated. January 29, 1973, discloses that the petitic111er "indulged in sell-ing Govt. paddy from the D.P. Agent godown at higher rate than the scheduled". It also refers therein to the second ground men-tioned in the grounds of detention. It is, therefore, not surprising that the petitioner wciuld have made long representation to the Govern· ment against his arrest and seizure of paddy and all other allegations which were certainly known to him in the course of the Court prosecu-tion. We are, therefore, not prepared to put the cart before the horse in Cl!'der to determine the validity of the impugned order in the light of the representation made by the petitioner in this case.

. We have carefully persued the grounds of detention and are con-strained to hold that. these are vague and uncertain grounds which did not enable the detenu to make an effective representation against the order. With reference to the first grciund it is not at all clear whether the three persons mentioned in the ground who purchased 4 .quintals of paddy were authorised purchasers or not. The first ground des· cribes the transaction as "clandestine deal"; but it is not at all clear how the transaction can be so described withciut any particulars to justify the observation. Similarly how the finding of 12 quintals and 15 kilograms of paddy can be described as "surreptitious business" without disclosing any definite particulars to even prima farie justify such an observation. · We are, therefore, clearly elf opinion that in this case the petitioner did not have· reasonable opportunity to make an effective representation ag11-inst the impugned order of detention. There is, therefore, clear violation ci Article 22 ( 5) of tlie Constitution of India as no adequate opportunity has been afforded to the petitioner to make proper representation. In case of preventive detention it is exceedingly important in the interest of liberty cl. the citizen that the minimum requirements of law which are laid down are strictly complied with and the detaining authority applies its mind in proper manner at the time of passing the order.

It is also submitted by the learned counsel fot the State of West Bengal that the Division Bench of the Calcutta High. Court had rejec!OO the petitioner's application for writ of habeas corplis under section 491, Criminal Procedure Code. It is, however, well known that such an order of the High Court does 'not operate as res judicata _in ai;i application before this Court under Article 32 of th; Constitution.

In the result the petiticin is allowed. The rule is made absolute. The· ~etitioner shall be released from detention forthwith.

Petition allowed.