Ajit Kumar Kaviraj Vs. The Distt.
Magistrate, Birbhum & ANR [1974] INSC 170 (6 September 1974)
GOSWAMI, P.K.
GOSWAMI, P.K.
REDDY, P. JAGANMOHAN
CITATION: 1974 AIR 1917 1975 SCR (2) 21 1975
SCC (3) 264
ACT:
Preventive Detention-Duty of detaining
authority to give unambiguous grounds to detenu-Procedural safeguards of
liberty-Duty to observe.
HEADNOTE:
The petitioner was detained under s. 3 of the
Maintenance of Internal Security Act, 1971. 'The grounds communicated to him
were, (1) that on 28-1-1973 at about 4.30 p.m., he. as a 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
a manner prejudicial to the maintenance of supplies and services essential to
the community; and (2) that on the same day at about 10.30 p.m.
a stock of about 12 quintals of paddy was
found in his godown and that he failed to justify the possession and that by
such surreptitious business as a direct purchasing agent he impeded the
progress of procurement of 'paddy and thereby acted in a manner resupplies and
services essential to the community.
In a petition under Art. 32, challenging the
detention,
HELD : (1) There was clear violation of Art.
22(5) as no adequate opportunity had been afforded to the petitioner to make a
proper representation, because, the grounds are 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 reference to the first ground it
is not clear whether the three persons mentioned in the ground were authorised
purchasers or not. The ground described the transaction as a 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 particulars
are disclosed even to prima facie justify the observation that the finding of
paddy in his possession was surreptitious business. [23C-E] (2) The petitioner
submitted a 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, 1955, referring to the second
ground of detention and he might have come to know the details in the course of
the prosecution. In a case of preventive detention it is absolutely necessary
to communicate the grounds of detention to the detenu in clear and ambiguous
terms giving such particulars as will facilitate making of an effective
representation that the order is unfounded. It is exceedingly important, in the
interest of liberty of the citizen that the minimum requirements of law are strictly
comPlied with and the detaining authority applies its mind in a proper manner
at the time of passing the order.
[22G.23C, F] (3) The order of the High Court
dismissing the petition of the petitioner under s. 491, Criminal Procedure
Code, 1898, would not operate at res Judicata in an application before this
Court under Art. 32.. [23G]
ORIGINAL JURISDICTION : Writ Petition No.
1880 of 1973.
Petition under Article 32 of the Constitution
of India.
H. C. Mittar, for the petitioner.
22 P. K. Chatterjee, G. S. Chatterjee and
Sukumar Basu, for the respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.-By this application under Article 32 of the Constitution for a 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 Act, 1971 (Act No. 26 of 1971). The
order of detention is passed on the ground that the petitioner has been acting
in a manner prejudicial to the maintenance of supplies and services essential
to the community. The impugned order is specifically founded on two grounds
communicated to the petitioner. These are as follows:(1) "On 28-1-73 at
about 4.30 P.M. you as a Direct Purchasing Agent of the Food Corporation 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. Khoyrasole and by
such clandestine deal in paddy you hindered the procurement of paddy and
thereby acted in a manner prejudicial to the maintenance of supplies and
services essential to the community".
"On 28-1-73 at about 10.30 P.M. a stock
of 12 qunt, 15 kg. of paddy was found in your godown but you failed to show any
record or account book to justify the stock in your godown. By such
surreptitious business as a Direct Purchasing Agent you impeded the progress of
procurement of paddy by the F.C.I. and thereby acted in a manner prejudicial to
the maintenance of 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 decision to one principal ground, namely, that the
grounds are so vague and uncertain that it is not reasonably possible for the
detenu to make an effective representation against the order of detention.
Mr. Chatterjee, appearing on behalf of the
State of West Bengal, seeks to support the order on the ground that the detenu
fully understood the import of the allegations mentioned in the grounds of
detention and submitted a long representation to the Government which was,
however, rejected. It is well settled that in a case of preventive detention
under the Act it is absolutely necessary to communicate the grounds of
detention to the detenu in clear and unambiguous terms giving as much
particulars as will facilitate making of an effective representation in order
to satisfy the detaining authority that the order is unfounded or invalid.
Before we proceed further we may note that
the petitioner was arrested by the police on January 28, 1973, and was produced
before 23 the Magistrate for prosecution under section 7 (1) (a) (ii) of the Essential
Commodities Act, 1955 Act No. X of 1955 for violation of condition of West
Bengal Rice, and Paddy Movement Order 1968. The first information report of
that case being Khoyrasole P. S. No. 10 dated January 29, 1973, discloses that
the petitioner "indulged in selling Govt.
paddy from the D.P. Agent godown at a higher
rate than the scheduled". It also refers therein to the second ground
mentioned in the grounds of detention. It is, therefore, not surprising that
the petitioner would have made a long representation to the Government against
his arrest and seizure of paddy and all other allegations which were certainly
known to him in the course of the Court prosecution. We are, therefore, not
prepared to put the cart before the horse in order to determine the validity of
the impugned order in the light of the representation made by the petitioner in
this case.
We have carefully pursued the grounds of
detention and are constrained 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 ground 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 describes the
transaction as a "clandestine deal"; but it is not 'at all clear how
the transaction can be so described without any particulars to justify the
observation.
Similarly how the finding of 12 quintals and
15 kilograms of paddy can be described as a "surreptitious business"
without disclosing any definite particulars to even prima facie justify such an
observation. We are, therefore, clearly of opinion that in this case the
petitioner did not have a reasonable opportunity to make an effective
representation against the impugned order of detention. There is, therefore,
clear violation of Article 22(5) of the Constitution of India as no adequate
opportunity has been afforded to the petitioner to make a proper
representation.
In a case of preventive detention it is
exceedingly important in the interest of liberty of the citizen that the
minimum requirements of law which are laid down are strictly complied with and
the detaining authority applies its mind in a proper manner at the time of passing
the order.
It is also submitted by the learned counsel
for, the State of West Bengal that the Division Bench of the Calcutta High
Court had rejected the petitioner's application for a writ of habeas corpus
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 an application before
this Court under Article 32 of the Constitution.
In the, result the petition is allowed. The
rule is made absolute. The petitioner shall be released from detention
forthwith.
V.P.S.
Petition allowed.
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