Ajit Kumar Kavlraj v. the Distt. Magistrate, Birbhum and Anr.

Judgment

ORIGINAL JURISDICTION : Writ Petition No. 1880 of 1973. ·. Petition under Article 32 of the Constitution .of .India. H. C. Mittar, for the pe~oner. · 22 SUPRliME COURT REPORTS 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 Constitutic!D 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 Att. 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 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 a Direct Purchasing 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 procurement of paddy and thereby acted in a manner prejudicial tc1 the maintenance of :rnpplies · 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 ac1:ount bc1ok 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 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 detention.

Mr. Chatterjee, appearing on behalf of the State of West Bengal, 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 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 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 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 petitictier was arrested by the police l)n January 28, 1973, and was produced before A. K. KAVIRAJ v. DIST. MAGISTRATE (Goswami, /.) 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 condition 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 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 wciuld have made a 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 prosecution. 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 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 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 a "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 a "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· a 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 a proper representation.

In a 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 a 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 a 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. V.P.S. Petition allowed.