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Goutam Goswami Vs. the District Magistarte and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1973CriLJ1010
AppellantGoutam Goswami
RespondentThe District Magistarte and ors.
Cases ReferredBowditch v. Balchin
Excerpt:
- .....3 (1) (a) (iii) of act 26 of 1971. the second dimension of mr. dasgupta's contention is that the grounds stated in the order of detention and the grounds of detention are contradictory inasmuch as one is for acting in any manner prejudicial to the security of the state and maintenance of public order and the other is for maintenance of supplies and services essential to the community. the next branch of contention is that the corrigenda served on the detenu later on, purporting to correct the grounds mentioned in the order of detention and also in the preamble to the grounds of detention, alter materially the said grounds on the basis whereof the detaining authority was satisfied, before passing the order of detention the fourth arid the last dimension of the arguments is that even if.....
Judgment:

Talukdar, J.

1. This Rule was issued on an application under Section 491 Criminal Procedure Code, filed by the detenu, Goutam Goswami. praying for a writ and/or order and or direction in the nature of habeas corpus and is directed against the District Magistrate, Birbhum. the Superintendent, Dum Dum Central Jail: and the Secretary, Home (Special) Department. Writers' Building. Calcutta.

2. The applicant before us has been detained under Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act 1971 (Act 26 of 1971) subsequently corrected as being under Section 3 (1) (a) (ii) of the said Act, on a corrigendum served on the detenu. The order of detention being No. 469-C dated Suri the 20th January. 1972 was passed by Shri M. Gupta. District Magistrate, Birbhum and by a further order No, 470-C dated Suri the 20th January. 1972 passed by the same learned Magistrate the detenu was directed to be detained in the Suri Jail. The detenu was arrested on 1-3-1972 and the grounds of detention which are two in number, were served on him. A copy of the order of detention is annexed to the petition, being marked as Annexure 'A' and is as follows:

Government of West Bengal

Order

No. 469-C dated Suri, the 20-1-1972.

Whereas I am satisfied with respect to the person known as Shri Goutam Goswami, S/o Rajat Kumar Goswami of 84, Chittaranjan Avenue. Cal-12 at present of Suri town, P.S. Suri Dist. Birbhum, that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do;

Now, therefore, in exercise of the powers conferred by Sub-section (1) read with Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971). I hereby make this order directing that the said Shri Goutam Goswami be detained.

Given under my hand and seal of office.

Sd/- M. Gupta, 20-1-1972

District Magistrate, Birbhum

A copy of the grounds of detention is also annexed to the petition, marked as Annexure 'A' and is as follows:

Government of West Bengal Office of the District Magistrate, Birbhum.

No. 471-C Dated 20-1-72Grounds under Sub-section (1) of section 3 of the Maintenance of Internal Security Act. 1971 for detention under Sub-section (1) read with Sub-section (2) of Section 3 thereof.

To.

Shri Goutam Goswami.

S/o Rajat Kumar Goswami

of 84, Chittaranjan Avenue,

Calcutta-12, at present of Suri

town. P.S. Suri. District-

Birbhum.

You are being detained in pursuance of a detention order made in exercise of the power conferred by Sub-section (1) read with Sub-section (2) of Section 3 of the maintenance of Internal Security Act, 1971. on the ground that you have been acting in a manner prejudicial to the maintenance of supplies and services essential to the community as evidenced by the particulars given below:

1. On 24-7-71. you and some of your active supporters compelled the other employees of State Electricity Board. Suri to stop supply of power by persuasion, threat and coercive means resulting total suspension of electric power supply for hours together on 24-7-71. as protest against the rounding up of some extremist elements including Gadadhar Mondal, an employee of SEB. Suri. This sudden stoppage of current supply for considerable hours adversely affected the services like hospital, water supply etc. of Suri town.

2. On 4-11-71 evening, you and some of your followers carried on secret campaign at Suri town by approaching loyal, willing and sincere S. E. B. workers for giving their unstinted co-operation even to the extent of sabotage, if necessary, to make a success of the 24 hours token strike on 5-11-71 commencing from 06.00 hrs. over various demands. In case of any reluctance from such workers, a stern warning was also given to them (willing workers) with a threatening by you and your associates which resulted in success of the token strike.

You are hereby informed that you may make a representation to the State Government against the detention order and that such representation shall be addressed to the Assistant Secretary, Home (Special) Department. Government of West Bengal, and forwarded through the Superintendent of the Jail in which you have been detained. Under Section 10 of the Maintenance of Internal Security Act, 1971 your case may be placed before the Advisory Board.

You are also informed that under Section 11 of the Maintenance of Internal Security Act, 1971 the Advisory Board shall if you desire to be so heard, hear you in person and if you desire to be so heard by the Advisory Board, you should intimate such desire in your representation to the State Government.

Sd/- M. Gupta.

District Magistrate

Birbhum, 20-1-72.

It will appear from the order of detention stated above, before the corrigendum was served, that the detention was 'with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order'. It further appears from the grounds of detention that the detenu was 'acting in a manner prejudicial to the maintenance of supplies and services essential to the community.

3. Mr. Parimal Dasgupta. Advocate, appearing in support of the Rule, on behalf of the appellant, made a submission consisting of 4 dimensions. The first dimension is that the order of detention disclosed that the satisfaction of the detaining authority was on the ground of 'the security of the State or maintenance of public order' and as such it gives rise to the reasonable conclusion that the detaining authority did not seriously apply his mind to the question whether the alleged activities fell under one head or the other but merely produced mechanically the language of Section 3 (1) (a) (iii) of Act 26 of 1971. The second dimension of Mr. Dasgupta's contention is that the grounds stated in the order of detention and the grounds of detention are contradictory inasmuch as one is for acting in any manner prejudicial to the security of the State and maintenance of public order and the other is for maintenance of supplies and services essential to the community. The next branch of contention is that the corrigenda served on the detenu later on, purporting to correct the grounds mentioned in the order of detention and also in the preamble to the grounds of detention, alter materially the said grounds on the basis whereof the detaining authority was satisfied, before passing the order of detention The fourth arid the last dimension of the arguments is that even if the corrigendum be given effect to in the preamble to the grounds of detention the same would still be in clear conflict with the nature of the incidents mentioned in the two grounds of detention, which come under a different head, particularly those in ground No. 1 and would establish thereby the non-application of the mind on the part of the detaining authority.

4. Mr. Prasun Chandra Ghosh Advocate with Mr. Ramendra Nath Chakraborty Advocate, appearing on behalf of the respondents, joined issue. Mr. Ghosh submitted that the first two contentions raised on behalf of the detenu are based on incorrect premises as would be abundantly clear from the two 'Corrigenda served on the detenu in due course, before the representation was made by him, clearing up the anomaly referred to above As to the third contention of Mr, Pasgupta relating to the legality and propriety of the corrigenda. Mr. Ghosh submitted that there is not only no inherent illegality therein, but also no prejudice was caused because these were served on the detenu before he made the representation, more so when no objection was raised to that effect in the said representation. On the 4th dimension of the arguments raised on behalf of the applicant, Mr. Ghosh contended that there is ultimately no conflict between the ground of detention and the contents of the two grounds, particularly those in ground No. 1, inasmuch as the incidents complained of also amounted to a disturbance of public order.

5. We would now take up the first two dimensions for consideration together. The ground referred to in the order of detention as originally served on the detenu, is clearly in the disjunctive. It is 'the security of the State or the maintenance of public order'. A reference may be made in this context to the case of Kishori Mohan Bera v. State of West Bengal. : AIR1972SC1749 wherein Mr. Justice Shelat. delivering the judgment of the Court observed at P. 1752 that 'The satisfaction of the District Magistrate was on the disjuctive and not conjunctive grounds, which means that he was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detention on the ground of danger to the public order or danger to the security of the State.' It was further observed that 'as the order stands, it would appear that he was either not certain whether the alleged activities of the petitioner endangered public order or the security of the State, or he did not seriously apply his mind on to the question whether the said alleged activities fell under one head or the other and merely reproduced mechanically the language of Section 3 (1) (a) (ii).' It is abundantly clear again that the ground mentioned in the preamble to the grounds of detention, being 'maintenance of supplies and services', is contradictory to the ground mentioned in the order of detention namely 'the security of the State or the maintenance of public order'. This apparent anomaly, according to Mr. Ghosh was explained away by the two corrigenda served on the detenu in due course before he made his representation. Mr. Ghosh produced before us the Home file wherefrom it appears that there is an order of corrigendum. No. 980C dated 27-2-72, signed by the District Magistrate, Birbhum. on the self-same date, wherein it has been clearly mentioned that for the words 'security of the State and maintenance of public order' appearing in the order of detention passed by him, the words 'maintenance of public order' are to be read. The detenu appears to have received the copy on signature on 30-3-72, as attested to by the Deputy Jailor whose signature also appears on the back of the corrigendum. Another corringendum No. 981C dated 27-2-72 was also signed by the District Magistrate. Birbhum on the self-same date and served on the detenu. It is mentioned therein that for the words 'maintenance of supplies and services essential to the community' appearing in the preamble to the grounds of detention, the words 'maintenance of public order' are to be read. This corrigendum was also served on the detenu as the endorsement on signature would establish and the same appears to have been received by him on 30-3-72. as attested to by the Deputy Jailor whose signature also appears on the back of the corrigendum. Mr. Ghosh contended that these anomalies are due to clerical mistakes and have since been corrected by the two corrigenda served on the detenu. The test for consideration, according to Mr. Ghosh, in such cases is whether any prejudice has been caused to the detenu concerned in making an effective representation, and no plea even to that effect having been taken in the representation, the objection now taken on that count by the learned Advocate appearing on behalf of the detenu, is more technical than real. For a proper decision on these two dimensions of argument, it is necessary to consider also the third point at issue as to whether the corrigenda served1 are maintainable in law in view of the nature thereof and also of the stage at which those were served.

6. This brings us to the third dimension of the argument raised on behalf of the detenu as to the legality and effect of the corrigenda served on the detenu. The first point to be considered in this context is that the copies of the order of detention as well as the grounds of detention have to be signed by the detaining authority before service, after arriving at his subjective satisfaction as to the necessity of exercising his power of detention under one head or the other under Section 3 (1) fa) of Act 26 of 1971. Secondly it has also to be taken into consideration that if the detaining authority was really satisfied on the grounds which were originally served but ultimately turned out to be incorrect as admitted in the corrigenda, how can it be said that he had properly applied his' mind thereto? Mr. Ghosh appearing on behalf of the respondents produced the Home file by way of explanation and pointed out that the original order of detention and the ground of detention are quite correct ones and it is only on the basis thereof that the detaining authority arrived at his subjective satisfaction, ruling out thereby any purported defect in applying his mind as alleged or at all. It is only the copies thereof that were sent to the detenu. Mr. Ghosh's contention regarding the application of mind by the detaining authority being in order, may be alright so far as the originals are concerned but it overlooks however the material point that the copies containing the anomalies or mistakes, were also signed by the detaining authority, on his subjective satisfaction, and accordingly he did not properly apply his mind thereto. Mr. Dasgupta appearing on behalf of the applicant further contended that in view of the clear anomalies in the two sets of copies duly signed and served upon the detenu, the detenu was prevented from making any effective representation.

7. The second test and the more important test for consideration is as to what extent such corrigendum would be valid. Reference in this context may be made to the case of Prahlad Keshav Atre v. Commr. of Police, Bombay, ILR (1955) Bom 715, Chief Justice Chagla delivering the judgment observed at p. 736 that 'In these cases of corrigendum what we have to consider is whether the corrigendum is such as to materially alter the grounds on which the order was based and which led to the satisfaction of the detaining authority. If the detaining authority was satisfied by a particular version of the matter and it then turns out that the version was quite different, then undoubtedly the Court would say that- the satisfaction was not a proper one and could not have been arrived at on the materials originally before the detaining authority.' We respectfully agree with the said observations and hold that the two corrigenda are alterations or amendments of substance, having a material bearing on the question whether the detaining authority applied his mind properly to the grounds in arriving at his satisfaction. It was observed in the case of Ram Manohar Lohia v. The State of Bihar : 1966CriLJ608 that 'If there is any doubt whether the rules have been strictly observed that .doubt must be resolved in favour of the detenu.' Applying the above yardstick we hold that the corrigenda served on the detenu later on. do not ultimately improve the position inasmuch as the same alters materially the grounds of detention previously served. The first three dimensions of Mr. Das-gupta's contention accordingly succeed.

8. The fourth and the last dimension of the defence contention now abides our consideration. Even if the corrigendum as served, be given effect to in the grounds of detention, the resultant ground in the preamble would read as 'maintenance of public order' and as such it would be still in clear conflict with the contents of the two grounds appended thereafter. By and large the two incidents incorporated in the two grounds are acts prejudicial to the maintenance of supplies and services essential to the community and1 the same does not dovetail into the corrected1 ground which is 'maintenance of public order.' This is clearer in ground No.. 1 viz. that 'on 24-7-71 the detenu and some of his active supporters compelled the other employees of State Electricity Board, Suri to stop supply of power by persuasion, threat and coercive means resulting in total suspension of electric power supply for hours together on 24-7-71 as protest against the rounding up of some extremist elements including Gadadhar Mondal an employee of SEB. Suri. This sudden stoppage of current supply for considera-'ble hours adversely affected the services, like hospital, water supply etc. of Suri town.' It is abundantly clear that the incident referred to above is one which is prejudicial to the maintenance of supplies and services and not maintenance of public order. Mr. Ghosh submitted that even if it be so the said incident also gives rise to a disturbance of public order and as such fits in with the ground of public order. A reference in this connection may be made to the case of Sushanta Goswami v. State of West Bengal AIR 1969 SC 1004. In the case of one of the petitioners. Makhanlal Saha, the ground of detention was to prevent him from acting in any manner prejudicial to the 'maintenance of public order' but the grounds were relevant to the head 'maintenance of supplies and services essential to the community.' Mr. Justice Grover delivering the judgment of the Court observed at page 1008 that 'For instance ground No. 1 (i) is that on March 28, 1968 the petitioner together with his associates committed theft of overhead traction wires including contact wire disrupting the train services in Bongaon Section for more than 7 hours. The grounds may have been relevant to the other head but none of them appears to be relevant to 'maintenance of public order.' It is somewhat surprising and altogether incomprehensible how any District Magistrate or even the Government could have missed seeing that the detention of this petitioner might have been justified under the head 'maintenance of supplies and services essential to the community' but not the 'maintenance of public order'. Therefore the detention order cannot be sustained and must be set aside. We respectfully agree with the said observations and we hold that the first ground of detention in this case is not at all relevant to the head of 'maintenance of public order.'

9. Mr. Ghosh's contentions also run counter to the principle of intent and that of meaning as also the different concepts incorporated in the different heads under Section 3 (1) (a) of Act 26 of 1971. The legislature in its wisdom has laid down in Section 3 as follows:

3 (1) The Central Government or the State Government may

(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to

(i) the defence of India, the relations of India with foreign powers or the security of India, or

; (ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services essential to the community or.

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India.

it is necessary so to do. make an order directing that such person be detained,' Some meaning and effect must be given to the intention of the legislature. It has been observed by Maxwell in 'The interpretation of Statutes' that 'a statute is the will of the legislature and the fundamental rule of interpretation, to which all others are subordinate, is that a Statute is to be expounded according to the intent, of them that made it.' A reference in this context may also be made to the golden rule of construction of statutes. Viscount Simon, L. C. held in the case of TNTokes v, Doncaster Amalgamated Collieries, 1940 AC 1014 at p. 1022 that 'The golden rule is that the words of a statute must prima facie be given their ordinary meaning.' ...we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.' Applying this principle we find that the interpretation given by Mr, Ghosh is not warranted by the principles of intent and meaning. In the case of AIR 1966 SC 740 : 1966 Cri LJ 608 the Supreme Court explained the difference between the three concepts of law. the law and order, public order and the security of the State, Mr. Justice Hidayatullah. as his 'Lordship then was, (for himself and Bacha-wat J.) observed at P. 758 that 'One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing pub-He order and the smallest circle represents security of the State.' We respectfully agree with the same and we hold that some meaning must be given to the different heads mentioned under Section 3 (1) (a). It is pertinent also to refer in this context to the observations of Lord Simon in the case of Magor and St. Mellons Rural District Council v. New Port Borough Council. 1952 AC 189 at p. 191 that 'The power and1 duty of the court to travel outside them (the words used by the legislature) on a voyage of discovery are strictly limited.' We agree with the said observations and we hold that to give effect to the interpretations of the provisions of Section 3 (1) (a.) of Act 26 of 1971, as made by Mr. Ghosh, would result in embarking 'on. a voyage of discovery.

10. Mr, Ghosh's interpretation is not also warranted by the method of construction of statutes encroaching on the liberty of the subject as laid down by an imprimatur of judicial decisions. Such interpretation needs must b'e a strict one. A reference may be made to Maxwell on 'The Interpretation of Statutes' (12th Edn) at page 251 where it has been stated that 'Statutes which encroach on the rights of the subject whether as regards person or property are subject to a strict construction in the same way as penal Acts ' It was again observed by Pollock C. B. in Bowditch v. Balchin, (1850) 5 Ex. 378 that 'in a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.' Reference in this context may also be made to the observations of Mr. Justice A. K. Sarkar (as his Lordship then was) in the case of : 1966CriLJ608 that 'If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people, we are dealing with an order behind the face of which a court is prevented from going. Circumstances may make it necessary. But it would be legitimate to require in such cases strict observance of the rules. If there is any doubt whether the rules have been strictly observed that doubt must be resolved in favour of the detenu.' We respectfully agree with the observations referred to above and we hold that the interpretation given by Mr. Ghosh is not ultimately sustainable as it would go against the natural construction of Section 3 of Act 26 of 1971, The fourth and last dimension therefore of Mr, Dasgupta's arguments also succeeds,

11. In the result, the Rule is made absolute: the detention of the detenu is held to be illegal and invalid; and we direct that the detenu be set at liberty forthwith. We have been informed by Mr. Dasgupta appearing on behalf of the detenu that the appellant has since been transferred to the Berhampore Special Jail. Let the order be sent down to the said jail accordingly.

R. Bhattacharya, J.

12. I agree.


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