R.N. Dutt, J.
1. This is an application under Section 491 of the Code of Criminal Procedure for a writ in the nature of Habeas Corpus against the detention of Kalyanmal Agarwalla under Sub-section(2) of Section 3 of the Preventive Detention Act 1950.
2. It appears that the detenu Kalyanmal Agarwalla is being detained on the basis of an order of detention made by the District Magistrate, Midnapore, on February 29, 1968, under Section 3 (2) of the Preventive Detention Act, 1950.
3. Mr. Mukherji first argues that no copy of the detention order was served on the detenu and as such the detention order should be struck down. It has been stated in the application that no copy of the detention order was served on the detenu when the detenu was taken into custody. The District Magistrate has in his affidavit said that copy of the detention order was served on the detenu when he was taken into custody. The District Magistrate has said this in his affidavit from information derived from the records in respect of this detenu. We do not however, find any affidavit from the Officer who actually served the copy on the detenu. Be that as it may, even if we assume that the copy of the order was not served on the detenu that, in our opinion, is no ground for striking down the order of detention. There is no specific provision in the Preventive Detention Act requiring service of copy of the order of detention on the detenu. Section 7 requires service of copy of the grounds for which the detenu has been detained. Mr. Mukherji refers to Section 3A of the Act and submits that the detention order is to be executed in the manner provided for execution of warrant of arrest under the Code of Criminal Procedure. True, but the Code of Criminal Procedure does not require that copy of the warrant of arrest has to be served on the person to be arrested and so we are not prepared to strike down the order of detention on the ground that copy of the detention order was not served on the detenu at the time when he was taken into custody. We read the decision of the Supreme Court in Naresh v. State of West Bengal, reported in : 1959CriLJ1501 as requiring that the grounds should be accompanied by a preamble containing recitals in terms of one or more of the Sub-clause (a) and (b) of Section 3 (1). In the instant case there is such a preamble to the grounds which were furnished to the detenu and that preamble recites that the detenu has been acting in a manner prejudicial to the maintenance of supplies and services essential to the community.
4. The grounds for the detention are as follows:
'(a) That on 28-7-66, at about 06.30 hrs. you were found carrying 40 bags of rice, weighing 30 qtls. concealed under gravels in truck no. W.G.C. 1373 from Midnapore Town to Calcutta, by the Checkpost staff of Sreerarnpore Check-post on Bombay Road within Debra P.S. area. In this connection you were sent up in charge sheet in Debra P.S. Case No. 20 dt. 27-7-66 under Section 7 (1) (a) (ii) of Act X/55 and you were convicted and sentenced to pay a fine of Rs. 500/- i.d. to suffer Rule I. for 15 days by Shri A. Mukhopadhaya, Magistrate 1st Class, Midnapore on 7-10-66.
(b) That on 30-10-67 morning, you transported 22 bags of rice weighing 16.15 kgs. covered by a tarpaulin by truck No. W.G.B. 1369 from your grocery shop at Station Road, Midnapore without having any licence to deal in rice or any movement permit.
(c) That on 30-10-67 at 17-00 hrs. In pursuance of certain statement, S.I.M.L. Majhi of Kotwali P.S. Midnapore searched your grocery shop at Station Road. Midnapore, and seized 27 bags of rice weighing 15 qtls. 23 kgs. 700 mgs. which you stored for sale in your said grocery shop without having any licence.' Mr. Mukherji submits that ground (a) has no proximate connection with the purpose for which the detenu is being detained. The detention order was made, as we have seen, in February 1968 but the conviction recited in ground (a) took place in October 1966. The allegations in ground (a) related to acts prejudicial to the maintenance of supplies essential to the community. Grounds (b) and (c) which relate to some incident on October 30, 1967 are again related to acts prejudicial to the maintenance of sup plies essential to the community. When we consider ground (a) in the context of grounds (b) and (c), we have no hesitation in holding that ground (a) has proximate connection with the purpose for which the detenu is being detained, namely, maintainance of supplies essential to the community.
5. Mr. Mukherji then argues that grounds (b) and (c) are firstly vague and misleading. These grounds state that the detenu transported 22 bags of rice from his grocery shop and that 27 bags of rice were seized from his grocery shop. From annexure 'C' to the affidavit-in-reply filed on behalf of the detenu, Mr. Mukherji argues that the grocery shop was not the grocery shop of the detenu. The shop was owned by one Mohanlal Gupta and the business is carried on in the name of 'Mohanlal & Co.'. Furthermore from this annexure Mr. Mukherji also submits that there is no allegation that the detenu had transported 22 bags of rice in the lorry which was seized.Annexure 'C' is the charge sheet submitted by the police after investigation of the allegations contained in grounds (b) and (c). The substance of the allegation Is that though Mohanlal Gupta was the owner of the business carried on in the name of 'Mohanlal & Co.', and though 'Mohanlal & Co.' has a municipal trade licence for the shop, it was the detenu who was indulging in unlawful deals in rice from that shop though he or 'Mohanlal & Co.' had no licence to deal in rice. The positive allegation is that it was the detenu who was indulging in these activities from this shop. True it has not been said that the detenu was present in the lorry when the lorry which contained 22 bags of rice was seized but the allegation is that these were being despatched by the detenu and so far as ground No. (c) is concerned, the allegation is that it was the detenu who had stored 27 bags of rice in the grocery shop without a licence. We are, therefore, not prepared to say that these grounds are either vague or misleading.
6. Mr. Mukherji then argues that the order was mala fide inasmuch as when a specific case was started against the detenu in respect of the allegations contained in grounds (b) and (c) the State did not allow the detenu to prove his innocence but made the order of detention on the self-same allegations. From annexure 'c' it appears that after investigation when the police submitted charge sheet, the police recommended discharge of the detenu on the ground that he had, in the meantime, been detained under the Preventive Detention Act. The District Magistrate was competent to take these allegations into his consideration for arriving at his subjective satisfaction, even if the case continued against the detenu. We do not therefore, think that merely because the detenu was discharged from the criminal case the order of detention becomes mala fide. The trial was for what the detenu is alleged to have done. The detention is with a view to prevent him from acting in similar manner. The District Magistrate cannot therefore be said to have made the detention order mala fide because after he made the detention order, the investigating officer has prayed for his discharge on the ground that he has already been detained under the Preventive Detention Act.
7. Mr. Mukherji finally submits that though the Police prayed for discharge of the detenu from the criminal case, we have no material before us to show that he was in fact discharged. Mr Mukherji submits that if the detenu has not been discharged then this order of detention should be struck down as it adversely affects his constitutional right under Article 22 of the Constitution, inasmuch ashe will be forced to disclose his defence before the Advisory Board and the prosecution will be able to use the same against him at the trial. We have considered this point in some other cases also and we have held that though the specific case is continued against a detenu even after he is detained, that does not adversely affect his constitutional right under Article 22 of the Constitution because the representation which he may make to the Advisory Board as part of the proceedings of the Board is confidential under Section 10 (3) of the Preventive Detention Act and cannot be used against him at his trial- Thus whether the accused has been discharged or not appears to us to be immaterial in the sense that in either view of the matter we find no reason to strike down the order of detention.
8. No other point is taken. We find that the detenu is being detained under lawful authority and in that view of the matter the Rule is discharged.
T.P. Mukherji, J.
9. I agree. (Application for leave to appeal to Supreme Court).
R.N. Dutt, J.
10. This is an application under Article 134(1)(c) of the Constitution for a certificate of fitness to appeal to the Supreme Court.
11. The petitioner was detained without trial on the basis of an order of detention made by the District Magistrate, Midnapore, on February 29, 1968, under Sub-section (2) of Section 3 of the Preventive Detention Act, 1950. An application under Section 491 of the Code of Criminal Procedure for a writ in the nature of habeas corpus was filed by the petitioner but was dismissed by us as we found that the detenu was being detained under lawful custody.
12. Various points were taken before us. The self-same points have again been raised. Mr. Dhar submits that he has in the meantime produced certain further materials and these should be taken into consideration for a decision about the legality or otherwise of the detention order. But this can never be a ground for a certificate of fitness to appeal to the Supreme Court.
13. The points raised before us and the points now raised by Mr. Dhar do not involve a substantial question of law requiring an authoritative decision from the Supreme Court and we do not think that it is a fit case for a certificate of fitness to appeal to the Supreme Court.
14. The application is, therefore, dismissed.
15. Let the certified copy of the judgment of this Court be returned to the learned Advocate for the petitioner.
T.P. Mukherji, J.
16. I agree.