A
8
## c
D
E
F
G
21
AJIT KUMAR KA VlRAJ
_v._
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 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 maintenan::e of supplies and services essential to the community; and (2) that on the
same day at about 10.30 p.m. a 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 a direct purchasing agent he impeded the progress of procurement of paddy and thereby acted in a manner prejudicial to the maintenance of
supplies and services essential to the community.
In a petitio11 under Art. 32, challenging the d~tention,
HEID .: ( 1 ) There was clear violation of Art. 22 ( S) as no adequate opportunity 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 described 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 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, _l9SS,_ referring to
the secpnd ground -Of detention and he might have come to know. the details in
the course of the prosecution. Jn a 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 a 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 '
# "
_H._ _C._ _Mittar,_ for the pe~oner. ·
ORIGINAL JURISDICTION : Writ Petition No. 1880 of 1973. ·.
Petition under Article 32 of the Constitution .of .India.
22 SUPRliME COURT REPORTS [1975] 2 s.c.R.
_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 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 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 deten
tion. 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
B
## c
D
E
F
G
H
.A
B
## c
D
E
F
G
A. K. KAVIRAJ _v._ DIST. MAGISTRATE _(Goswami,_ /.) 2 3
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._
