Srilal Shaw Vs. The State of West
Bengal & Ors [1974] INSC 262 (4 December 1974)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
RAY, A.N. (CJ) GUPTA, A.C.
CITATION: 1975 AIR 393 1975 SCR (2) 913 1975
SCC (1) 336
CITATOR INFO:
D 1975 SC 751 (4,5) R 1975 SC 753 (38) RF
1975 SC 919 (9,13) RF 1975 SC1165 (4) F 1975 SC1496 (6) RF 1975 SC1508 (4) C
1979 SC1945 (4,8)
ACT:
MISA-Preventive Detention Act-Person who can
be easily prosecuted under Punitive laws whether can be preventively
detained-Habeas Corpus- Constitution of India Art. 32.
HEADNOTE:
The petitioner in this habeas corpus petition
has challenged the validity of detention order dated the 28th August. 1973,
passed under the Maintenance of Internal Security Act, 1971 on the ground that
the petitioner was acting in a manner prejudicial to the maintenance of
supplies and services essential to the community. The ground of detention
furnished to the petitioner was that on 19-8-1973 when petitioner's godown was searched. property belonging to the Railways of the value of Rs. 1180/- 'was
found. The case of the petitioner was that the goods were scrap matter and that
such article were available in the open market. The petitioner produced some
receipts alleged to have been issued by the persons from whom he purchased the
scrap. A criminal case was filed against the petitioner under section 3(a) of
the Railway Property (Unlawful Possession) Act, 1966 but that case could not be
proceeded with as according to the District Magistrate the witnesses did not
dare to depose in open court against the petitioner for fear of their lives.
HELD : This is a typical case in which for no
apparent reason a person who could easily be prosecuted under the punitive laws
is being preventively detained. The Railway Property (Unlawful Possession) Act,
1966, confers extensive powers to bring to book persons who are found in
unlawful possession of railway property. Statements recorded under that Act
during the course of investigation do not attract the provisions of section 162
of the Criminal Procedure Code. The Sub Inspector of Police who made the
Panchanama could certainly not be afraid of giving evidence against the
petitioner. Besides, if the statement of the detenue was recorded during the
course of investigation that itself could be relied upon by the prosecution in
order to establish the charge that the petitioner was in unlawful possession of
the railway property.
HELD FURTHER: On the material which was
available to the detaining authority it was impossible to arrive at the
conclusion that the possession of the petitioner was unlawful. The prosecution
was in all probability dropped as the petitioner might have been able to
establish that his possession of the goods was not unlawful. The rule was made
absolute and the petitioner was directed to be set at liberty forthwith. [914
F-G]
ORIGINAL JURISDICTION: Writ Petition No. 453
of 1974.
(Petition Under Article 32 of the
Constitution of India) D. K. Sinha and K. R. Nambiar, for the Petitioner;
P. K. Chakravarty, and G. S. Chatterjee, for
the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD J.-This is a habeas corpus petition challenging the validity of an
order of detention passed by the District Magistrate, 24 Parganas, West Bengal
on August 28, 1973.
That order was passed under the Maintenance
of Internal Security Act, 1971 on the ground that the petitioner was acting in
a manner prejudicial to the maintenance of supplies and services essential to
the community.
The particulars of the ground of detention
furnished to the petitioner state that on August 19, 1973 when the petitioner's
godown at Naihati was searched property belonging to the Railway which was 914
not available in the open market and which was of the approximate value of Rs.
1180.50 was found. The property is stated to consist of 10 pieces of tic bars,
10 pieces of Rly. fish plates, 7 pieces of couplings, 20 pieces of two way keys
and 11 pieces of cut pieces of rails".
The case of the petitioner as disclosed in
his petition is that the articles recovered from his godown are scrap metal and
that such articles are available in the open market.
The petitioner claims to have purchased
several such articles of scrap metal on April 12 and June 28, 1973 from a firm
called R. Choudhary & Co. doing business at 121/4A, Manikotla Main Road,
Calcutta. The petitioner has produced stamped receipts alleged to have, been
issued by the sellers. The receipt dated April 12, 1973 is in the sum of Rs.
525-60. The receipt is apparently issued in the name of the petitioner and
relates to scrap consisting of couplings, Dog pins, Clips, Pull Rod Keys,
Socket fish plates etc. The price of the scrap material is stated in the
receipt to be Rs. 510.00 on which Sales Tax at 3% and surcharge on the Sales
Tax at 2% is charged. The second receipt dated June 28, 1973 also purports to
have been issued by the sellers R.
Chaudhary & Co. in favour of the
petitioner. The receipt evidences the safe of similar scrap articles of the
value of Rs. 5000.00. Adding the Sales Tax and the surcharge the amount of the
bill is made out in the receipt at Rs. 5153.
The District Magistrate, in his counter
affidavit, says that the goods which were recovered from the godown of the
petitioner are of a special kind used exclusively by the Railways and are not
available in the open market. A criminal case was filed against the petitioner
under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 but
that case could not be proceeded with as, according to the District Magistrate,
the witnesses "did not dare to depose in open court against the detenu for
fear of their lives". It appears from the counter affidavit that a
petition filed by the petitioner in the Calcutta High Court to challenge the
very order of detention was dismissed on December 21, 1973. The Seizure List
which is Annexure B to the counter affidavit contains at the end a certificate
by the Sub-Inspector of Police who seized the articles that they "appear
to be serviceable Rly. P.W.D. materials and Rly. Carriage materials".
This strikes us as a typical case in which
for no apparent reason a person who could easily be prosecuted under the
punitive laws is being preventively detained. The Railway Property (Unlawful
Possession) Act, 29 of 1966, confers extensive powers to bring to book persons
who are found in unlawful possession of railway property. The first offence is
punishable with a sentence of five years and in the absence of special and
adequate reasons to be mentioned in the judgment the imprisonment shall not be
less than one year. When a person is arrested for an offence punishable under that
Act, officers of the Railway Protection Force have the power to investigate
into the alleged offence and the statements recorded by them during the course
of investigation do not attract the provisions of section 162, Criminal
Procedure Code. (See Criminal Appeal No. 156 of 1972 decided on 23-8-1974). If
the facts stated in the ground are true, this was an easy case to take to a
successful termination. We find it impossible 915 to accept that the
prosecution could not be proceeded with as the witnesses were afraid to depose
in the public against the petitioner. The Sub-Inspector of Police who made the
Panchnama we hope, could certainly not be afraid of giving evidence against the
petitioner. He had made the Panchnama of seizure openly and to the knowledge:
of the petitioner.
Besides, if the petitioner's statement was
recorded during the course of investigation under the Act of 1966, that itself
could be relied upon by the prosecution in order to establish the charge that
the petitioner was in unlawful possession of Railway property.
The petitioner has produced receipts in
respect of the purchases made by him and those receipts, show that even Sales
Tax and Surcharge on Sales Tax was charged on the sale price. All that the
District Magistrate says in regard to the. receipts is that "The receipts
which have been annexed to the writ petition would not be of any material
assistance". This statement makes no sense because the receipts constitute
the very foundation of the petitioner's defence to the charge that he was in
unlawful possession of railway property.
We are therefore of the opinion that on the
material which was: available to the detaining authority, it was impossible to
arrive at the conclusion that the possession of the petitioner was unlawful. It
seems to us that the prosecution was in all probability dropped as the
petitioner might have been able to establish that his possession of the goods
was not unlawful. The petition must therefore succeed. Accordingly, we make the
Rule absolute and direct that the petitioner shall be set at liberty forthwith.
P.H.P.
Petition allowed.
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