Sanwar Ali, Sk. vs State of West Bengal

N.C. Talukdar, J.—This Rule was issued upon an application u/s 491 of the Code of Criminal Procedure praying for a writ and/or order and/or direction in the nature of habeas corpus on behalf of the detenu, Sk. Sanwar Ali, and is against the State of West Bengal through the Secretary, Home (Special) Department, the Superintendent, Dum Dum Central Jail, and the District Magistrate, Howrah.

The applicant before us has been detained u/s 3(2) of the Preventive Detention Act, 1950 (IV of 1950), by an order, being order No. 1242C dated July 14, 1967, passed by Sri S.C. Sarkar, District Magistrate, Howrah. By a further order No. 1243C of the same date the Petitioner was directed by the said District Magistrate to be detained in the Dum Dum Central Jail. The applicant was arrested on July 15, 1967, and the grounds of detention were communicated to him.

A copy of the order of detention as annexed to the petition moved in this Court and marked as annex. ''A'' is in these terms:

Government of West Bengal,

Office of the District Magistrate, Howrah

ORDER

No. 1242C, dated Howrah, the 14. 7.1967.

Whereas I am satisfied with respect to the person known as Sk. Sanwar Ali s/o. Gobordhan Mallick of Nalpur P.S., Sankrail, dist. Howrah, that with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies services essential to the community it is necessary to do so; Now, therefore, in exercise of the powers conferred by Section 3(2) of the Preventive Detention Act, 1950 (Act IV of 1950), I made this order directing that the said Sk. Sanwar Ali s/o. Gobordhan Mallick be detained. Given under my hand and seal of office.

Sd/- Illegible, 14/7 (S.C. Sarkar) District Magistrate, Howrah

The grounds of detention, have bees stated in annex. ''B'' to the petition, as detailed below:

(a) That on the 1st February, 1966, at about 06.15 hrs. you and your associates stopped Down Puri Howrah Express by pulling alarm chain and detained with 24 bags of rice weighing about 7.5 quintals near the down outer signal Nalpur Railway Station. The rice was smuggled out from Orissa. When the Police intercepted, you fled away leaving behind the bags of rice. You and your associates then assaulted the Police party and snatched away 5 bags of seized rice from their possession at Nalpur Railway Station, You and your associates also snatched away the musket of constable No. 291 Niranjan Das (vide Salimar G.R.P.S., Vase No. 1 dated 1.2.1966, u/s 147/149/353/379, IPC).

(b) That between 27.3.1966 and 1.4.66, you and your associates collected rice from smugglers who alighted from Down Puri Passenger and Down Machada Local trains between 02.00 hrs. and 06.06 hrs. at Nalpur and Bauria Railway Stations.

(c) That on 13.4.1966 and 17.4.1966, five respectable citizens of Nalpur complained that you and your associates are systematically smuggling 30/40 bags of rice daily by different down trains from Orissa and Midnapore and selling the stock at exorbitant rates.

(d) That on 25.6. 1966 at about 04.00 hrs. you and your associates stopped Down Ranchi Howrah Express near the East Cabin of Bauria Rly. Station, by pulling alarm chain, dropped 6 bags of rice and fled away leaving behind the rice on arrival of Police Party there (vide Bauria P.S. Case No. 10 dated 25. 6. 1966, u/s 7(i)(a)(ii) of Act X of 1955).

(e) That on 28.12.1966 at 21.00 hrs. you and your associates unloaded 50 bags of: rice from Down Midnapore Howrah Passenger and despatched the entire stock to Nalpurghat, where-from the stock was sent to 24-Parganas district by boat in violation of the provisions of the West Bengal Essential Commodities (Restrictions of Movement) Control Order, 1965.

(f) That on 10.2.1967 you and your associates collected, rice from the smugglers who had alighted from Down Panskura Local and Gomoh Passenger between 16-32 hrs and 19-56 hrs. at Nalpur Rly. Station.

(g) That ore 23.6.1967, you sold rice @ Rs. 2.25 to Rs. 2.35 per kg: at Nalpur Raitoray, Station Bazar and thereby violated the provisions of the West Bengal Anti-Profiteering Act (Act XXIV of 1958).

(h) That on 27.6.67 you and your associates despatched rice in small bundles of 2 to 4 kg. each through some women and children by different local trains to Ramrajatala and Santragachi and thereby violated the provisions of West Bengal Essential Food-stuffs Anti-Hoarding Order, 1966.

Mr. Kazi Mohammad Ali, appearing on behalf of the detenu, has challenged the order of detention substantially on five grounds. In the first instance he has contended that the order of detention as made is not bona fide inasmuch as the order is in a cyclostyled form containing apparent errors and also deviations from the requirements of the relevant statute. His second contention is that there is no reasonable ''nexus'' between the purpose of the detention and the grounds of detention which are mala fide and do not make out the allegation that the detenu was acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The third ground urged by Mr. Ali is that some of the grounds, namely, grounds Nos. 2(b) and 2(c) are not sufficiently exact and precise and they are too vague thereby preventing the applicant from making an effective representation. The next contention is that two of the grounds, namely, grounds Nos. 2(a) and 2(d) are non-existent and illegal inasmuch as their purpose is to nullify the order of discharge passed by a Court of law in favour of the Appellant in the criminal case brought against him over the same matter as also the Final Report submitted by the Police. The last contention is that the applicant has no adequate knowledge of English and, accordingly, he was prevented from making an effective representation to the authority.

Mr. S.N. Banerjee, Dy. Legal Remembrancer, with Mr. Anil Kumar Sen, Advocate, appearing on behalf of the State, has'' urged that there is no substance in the contention put forward on behalf of the applicant that the grounds are in any way vague or nonspecific as alleged or at all; that there is a very reasonable ''nexus'' between the grounds of detention and the purpose of the same; that the mistake in grammar and also in parenthesis is immaterial and has not prejudiced the detenu in any way to make his representation Or to prevent the authorities to be satisfied properly; that the allegation about the inadequacy of the applicant''s knowledge in English is not correct and, in any event, did not prevent him from making an effective representation which he in fact had made; and that the proposition put forward on behalf of the detenu that the order of detention is bad because two of the grounds are non-existent, and seek to nullify the order of discharge passed by a Court of law in favour of the applicant in the criminal case brought against him over the same subject-matter, as also the Final Report submitted by the Police is also misconceived and unwarranted.

We will now proceed to examine the grounds of detention and the affidavits to find out their bearing on the respective contentions mentioned above. Grounds Nos. 2(a) and 2(d) are alleged to be non-existent and illegal because of their avowed purpose to nullify the order of discharge passed by the Court of law as also the final report submitted by the Police. Ground No. 2(a) relates to an incident dated February 1, 1966, in connection with the stopping of (he Down Puri Howrah Express by pulling alarm chain and detraining 24 bags of rice and also for snatching away the musket of a constable for which Salimar G.R.P.''s case No. 1 dated February 1, 1966, u/s 147/149/353/379, I.P.C., was started. In para. 8 of the petition affirmed on behalf of the applicant it was stated that the ground was vague, non-existent and mala fide, because the said case ultimately resulted in a discharge by an order dated September 5, 1966, passed by the learned Magistrate and, as such, the said ground was palpably incorrect. In para. 10 of the affidavit-in-opposition filed by the District Magistrate, Howrah, the said allegations were denied and it was stated that the ground of detention as contained in ground No. 2(a) was quite bona fide, and true, and the applicant was discharged in the relative case as sufficient evidence could not be secured to support further prosecution. So far as ground No. 2(d) is concerned, the applicant denied in para. 11 of the petition that he was connected with the alleged Bauria P.S. case No. 10 dated June 25, 1966, u/s 7(1)(a)(ii) of Act 10 of 1955, and that the said ground was non-existent, vague and mala fide. The District Magistrate denied the same in para. 13 of the affidavit-in-opposition and stated that the said detenu was involved in the said case under the said section, but the Police had to submit a Final Report on September 14, 1966, for want of sufficient evidence. Ground No. 2(b) has been traversed in para, 9 of the petition affirmed on behalf of the detenu and it was stated that the allegations contained therein were vague, meaningless and had no existence at all, but in para. 11 of the affidavit-in-opposition the District Magistrate has denied the same and states that the said ground of detention is fully supported by a number of watch reports of the Enforcement branch of the Police dated March 27, 28, 29, 30 and 31, 1966, as well as of April 1, 1966. As regards ground No. 2(c), the allegations mentioned therein were stated to be false and also vague and mala fide. The District Magistrate denied the said allegation in para. 12 of the affidavit-in-opposition and stated that there were on record bona fide complaints by reasonable residents of the locality, that the said detenu had been indulging in smuggling rice to Nalpur and Bauria and that the name of those persons could not be disclosed for greater public interest. So far as grounds Nos. 2(e), 2(f), 2(g) and 2(h) were concerned it was stated on behalf of the applicant in paras. 12 to 15 of his petition that those were vague, non-existent and mala fide. In paras. 14 to 17 of the affidavit-in-opposition filed by the District Magistrate the same has been denied and it has been stated therein that the said grounds of detention are fully supported by relevant watch reports by the Police officers concerned and that the District Magistrate was himself satisfied that those com-plaints were true and bona fide.

Having examined the grounds as mentioned above and after going through the respective affidavits it is difficult for us to hold that there is any absence of reasonable nexus between the purpose of the detention and the grounds of detention or that those are vague or mala fide; nor can it be held on the materials on record that there is no correlation between the grounds and the purpose of the order, namely, the prevention of the detenu from acting in a manner prejudicial to the maintenance of supplies and services essential to the community.

We will now take up for our consideration the other material points raised by Mr. Kazi Mohammad Ali on behalf of the applicant. He has urged that the order of detention as made is not bona fide inasmuch as the order is in a cyclostyled form, containing apparent errors and also deviations from the requirements of the relevant statute. Mr. Ali has pointed out from annex. ''A'' to the petition that in the very first paragraph therein is stated "maintenance of supplies services essential to the community, it is necessary to do so". He, has pointed out next to the expression used in the second paragraph that "made this order directing that the said Sk. Sanwar Ali etc." and has urged that the language used is defective. The original order was produced by the learned Deputy Legal Remembrancer before us and the same supports these inaccuracies. We hold, however, that these mistakes in dropping the ''and'' after the word ''supplies'' and the failure to use the expression ''so'' after the word ''necessary'' are not material. This also holds good so far as the word ''made'' is concerned instead of ''make'', which would have been the proper expression. It must be borne in mind that the satisfaction concerned is of the appropriate Government and not of the counsel or of the Courts. The sufficiency of the grounds, in the sense whether they could give satisfaction to the authorities, is not a matter for examination by the Courts. Such sufficiency can only be examined by the Courts to find out whether the grounds would enable the detenu to make an effective representation. The authority is to be satisfied on the relevant materials placed before it before the passing of the order of detention and not thereafter. The order of detention, the form and the language whereof have been impugned, was passed after the factum of satisfaction on the part of the authority as to the sufficiency of the grounds and, as such, the mistakes referred to above do not establish that the order of detention as passed is not bona fide and the relative satisfaction is not also sufficient. The same reasons hold good with regard to the objection made as to the form of the order which is in a cyclostyled form. It is undoubtedly true, as has been observed by their Lordships of the Supreme Court in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, that--

The detention of a person without a trial is a very serious encroachment on his personal freedom, and so, at every stage, all questions in relation to the said, detention must be carefully and solemnly considered.

But in the facts and circumstances of the present case and in view of the nature of the deviations complained of, we do not think that it will be either expedient or necessary to introduce Nesfield or Mcmordie in a Court of law and refer to the same for the purpose of a hair-splitting interpretation. In this context it may be pertinent to refer to the case of Prahlad Keshav Atre v. Commissioner of Police, Bombay ILR (1956) Bom. 715, wherein Chief Justice Mr. Chagla and Mr. justice Desai have held, inter alia, that in cases of corrigendum relating to grounds of detention, what the Court has to consider is whether the said corrigendum is such as to materially alter the grounds on which the order was passed and which led to the satisfaction of the detaining authority. The facts of that case are of course different from those obtaining in the instant case. The present case is not one of corrigendum and the objection also does not relate to the grounds of detention but merely to the language of the order of detention. However, the underlying principle is the same. We agree with the observations made by their Lordships in the said case and hold against the contention raised in this behalf by Mr. Ali.

The next ground urged by Mr. Ali is that the applicant has read up to Class VI and has no adequate knowledge of English to enable him to understand the grounds supplied to him in English and, accordingly, he was prevented from making an effective representation to the authority. The said statement has been made in para. 7 of the petition affirmed on behalf of the detenu, and it was denied by the District Magistrate, Howrah, in para. 9 of the affidavit-in-opposition wherein it was stated that it appeared clearly from the representation submitted by the detenu on August 11, 1967, to the Assistant Secretary, Home (Special) Department, against the order and the grounds of detention that he fully understood the said grounds Served upon him. A reference in this connection may be made to the case of Harikisan Vs. The State of Maharashtra and Others, wherein the principle governing such cases has been laid down. Their Lordships of the Supreme Court have observed that--

If the detained person is conversant with the English language, he will naturally be in a position to understand the gravamen of the charge against him and the facts and circumstances on which the order of detention is based. But to a person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenu must be given the grounds in a language which he can understand and in a script which he can read, if he is a literate person.

It does not appear from the facts and circumstances of the case and the affidavits used that the detenu in this case was such a person. The statement made in this behalf in para. 7 of this petition is vague and admits, in any event, that the detenu has read up to Class VI and as stated in para. 9 of the affidavit-in-opposition by the District Magistrate, the detenu was not prejudiced from making an effective representation as submitted on August 11, 1967. In a recent decision in Dulichand Santhalia on behalf of Radhashyam Santhalia v. The State Criminal Misc. Case No. 337 of 1967, dated Dec. 11, 1967 this Bench has held in favour of the detenu on the question of language, standing as an impediment to making an effective representation by the detenu. The detenu in that case, however, could not in fact make any representation. The prejudice of the detenu, therefore, in that case sticks out for miles and is entirely different from that as urged on behalf of the applicant in the instant case. We, therefore, hold against the applicant on this point also. Lastly, we will take up the other point taken by Mr. Ali on behalf of the detenu relating to grounds Nos. 2(a) and 2(d). As we have already mentioned, Mr. Ali''s contention is that the said grounds are non-existent and illegal inasmuch as their purpose is to nullify the order of discharge passed by the Court of law in favour of the applicant in the criminal case brought against him over the same subject-matter as also the Final Report submitted by the Police. Mr. Ali has contended, inter alia, that the previous order of acquittal or of discharge vitiates the subsequent order of detention over the same subject-matter and in view of the ultimate order of discharge or the Final Report submitted in the two cases as mentioned in grounds Nos. 2(a) and 2(d), the incorporation of the same facts in the grounds of detention is not only bad but mala fide, because it seeks to nullify the said orders by the Courts of law or the relevant authorities passed previously in favour of the detenu. It was contended on behalf of the State that the proposition put forward by Mr. Ali on behalf of the Petitioner was not a correct proposition and was not supported by the relevant decisions on the point. In the first instance a reference was made to the Full Bench case of Maledath Bharathan Malyali Vs. The Commissioner of Police, , wherein their Lordships have held against the point now sought to be raised by Mr. Ali. It was held, inter alia, that--

The authorities have laid down that the powers of the detaining authority are very wide under the law as it exists today. Government may detain a person even though the grounds clearly disclose that he could have been prosecuted under the ordinary criminal law with regard to those very grounds. The detaining authority may, as I pointed out earlier, detain a person although a criminal Court has acquitted him in respect of the very charge for which he is being detained under the Security Act. (Page 205)

A reference may be made to a more recent decision of the Calcutta High Court in the case of Ramanlal Rathi v. Commissioner of Police, Calcutta (1951) 56 C.W.N. 42, wherein Mr. Justice P.B. Mukharji and Mr. Justice B.K. Guha have held that an order of detention under the Preventive Detention Act is not illegal merely because it nullifies a previous order of discharge or acquittal by a Court in a criminal or a quasi-criminal case. Their Lordships have held, inter alia, that--

The satisfaction is of the appropriate Government and not of the Courts. Such satisfaction as laid down in Section 3 of the Preventive Detention Act is not limited to be based on the existing laws of the land. Fundamentally therefore the operation of the existing laws of the land or the determination of the offences by Courts under such laws and the result arising therefrom whether of acquittal or discharge or even of conviction (for instance, only a sentence of fine and not of imprisonment) cannot be allowed to operate as a restriction on the powers of the Government to detain u/s 3 of the Preventive Detention Act. (Page 46)

In the case of Shanichari Debi v. State of West Bengal (1955) 59 C.W.N. 545 Mr. Justice Guha Roy and Mr. Justice Sen have held that--

There is nothing to prevent the authorities from proceeding under the Preventive Detention Act even when there are specific proceedings under the original criminal law against a particular person.

In a more recent decision in the case of Priyatosh Mazumdar, on behalf of Priyatosh Mazumdar on behalf of Jogeshwar Mazumdar Detenu Vs. State of W. Bengal and Others, , wherein Mr. Justice Debabrata Mookerjee and Mr. Justice D.N. Dasgupta have proceeded further and have held that--

Even assuming that there were such parallel proceedings in existence, one in Court and the other by way of detention, we do not think that by itself would vitiate the order which is not under challenge. (Page 590)

In the present case there is only a Final Report in one ground and an order of discharge in the other and the District Magistrate in his affidavit-in-opposition has clearly averred that the order of discharge was due to the fact that sufficient evidence could not be secured to support further prosecution and the Final Report is also due to want of sufficient evidence. The satisfaction concerned is entirely subjective of the authority concerned and is based upon materials as placed before it at the time of such satisfaction. The consideration of the Court and the consideration of the Government are in these contexts different and do not belong to the same realms of scrutiny. We, accordingly, overrule this contention also raised on behalf of the defenu by Mr. Kazi Mohammad Ali.

In the result, we hold that there are no grounds to interfere with the impugned order of detention and the rule is accordingly discharged.

R.N. Dutt, J.

I agree.