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PETITIONER: SRILAL SHAW

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT04/12/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. RAY, A.N. (CJ) GUPTA, A.C.

CITATION:  1975 AIR  393            1975 SCR  (2) 913  1975 SCC  (1) 336  CITATOR INFO :  D          1975 SC 751  (4,5)  R          1975 SC 753  (38)  RF         1975 SC 919  (9,13)  RF         1975 SC1165  (4)  F          1975 SC1496  (6)  RF         1975 SC1508  (4)  C          1979 SC1945  (4,8)

ACT: MISA-Preventive  Detention  Act-Person  who  can  be  easily prosecuted  under Punitive laws whether can be  preventively detained-Habeas Corpus- Constitution of India Art. 32.

HEADNOTE: The petitioner in this habeas corpus petition has challenged the validity of detention order dated the 28th August. 1973, passed under the Maintenance of Internal Security Act,  1971 on  the  ground that the petitioner was acting in  a  manner prejudicial  to  the maintenance of  supplies  and  services essential  to  the  community.   The  ground  of   detention furnished  to  the  petitioner was that  on  19-8-1973  when petitioner’s godown was searched. property belonging to  the Railways of the value of Rs. 1180/- ’was found.  The case of the petitioner was that the goods were scrap matter and that such  article  were  available  in  the  open  market.   The petitioner  produced  some  receipts alleged  to  have  been issued  by the persons from whom he purchased the scrap.   A criminal case was filed against the petitioner under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 but  that case could not be proceeded with as  according  to the District Magistrate the witnesses did not dare to depose in  open  court  against the petitioner for  fear  of  their lives. HELD  :  This  is a typical case in which  for  no  apparent reason  a  person who could easily be prosecuted  under  the punitive  laws is being preventively detained.  The  Railway Property (Unlawful Possession) Act, 1966, confers  extensive powers  to bring to book persons who are found  in  unlawful possession  of railway property.  Statements recorded  under that  Act during the course of investigation do not  attract the  provisions  of section 162 of  the  Criminal  Procedure

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Code.   The Sub Inspector of Police who made the  Panchanama could certainly not be afraid of giving evidence against the petitioner.   Besides, if the statement of the  detenue  was recorded  during  the course of  investigation  that  itself could  be  relied  upon  by  the  prosecution  in  order  to establish  the  charge that the petitioner was  in  unlawful possession of the railway property. HELD  FURTHER:  On the material which was available  to  the detaining  authority  it  was impossible to  arrive  at  the conclusion  that  the  possession  of  the  petitioner   was unlawful.  The prosecution was in all probability dropped as the  petitioner might have been  able to establish that  his possession of the goods was not unlawful.  The rule was made absolute  and  the  petitioner was directed  to  be  set  at liberty forthwith. [914 F-G]

JUDGMENT: ORIGINAL  JURISDICTION  :  Writ Petition No.  453  of  1974. (Petition Under Article 32 of the Constitution of India) D.   K. Sinha and K. R. Nambiar, for the Petitioner; P.   K.   Chakravarty,  and  G.  S.  Chatterjee,   for   the Respondent. The Judgment of the Court was delivered by CHANDRACHUD J.-This is a habeas corpus petition  challenging the validity of an order of detention passed by the District Magistrate,  24  Parganas, West Bengal on August  28,  1973. That  order  was passed under the  Maintenance  of  Internal Security  Act,  1971 on the ground that the  petitioner  was acting  in  a  manner  prejudicial  to  the  maintenance  of supplies and services essential to the community. The particulars of the ground of detention furnished to  the petitioner   state  that  on  August  19,  1973   when   the petitioner’s   godown  at  Naihati  was  searched   property belonging to the Railway which was 914 not  available  in  the open market and  which  was  of  the approximate value of Rs. 1180.50 was found.  The property is stated  to  consist of 10 pieces of tic bars, 10  pieces  of Rly.  fish plates, 7 pieces of couplings, 20 pieces  of  two way keys and 11 pieces of cut pieces of rails". The  case of the petitioner as disclosed in his petition  is that the articles recovered from his godown are scrap  metal and  that  such articles are available in the  open  market. The  petitioner  claims  to  have  purchased  several   such articles of scrap metal on April 12 and June 28, 1973 from a firm  called  R. Choudhary & Co. doing business  at  121/4A, Manikotla Main Road, Calcutta.  The petitioner has  produced stamped  receipts  alleged  to  have,  been  issued  by  the sellers.  The receipt dated April 12, 1973 is in the sum  of Rs. 525-60.  The receipt is apparently issued in the name of the petitioner and relates to scrap consisting of couplings, Dog pins, Clips, Pull Rod Keys, Socket fish plates etc.  The price  of the scrap material is stated in the receipt to  be Rs.  510.00  on which Sales Tax at 3% and surcharge  on  the Sales  Tax at 2% is charged.  The second receipt dated  June 28, 1973 also purports to have been issued by the sellers R. Chaudhary  & Co. in favour of the petitioner.   The  receipt evidences the safe of similar scrap articles of the value of Rs.  5000.00.  Adding the Sales Tax and  the  surcharge  the amount of the bill is made out in the receipt at Rs. 5153. The District Magistrate, in his counter affidavit, says that the  goods  which  were recovered from  the  godown  of  the petitioner  are  of a special kind used exclusively  by  the

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Railways  and  are  not available in  the  open  market.   A criminal case was filed against the petitioner under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 but  that case could not be proceeded with as, according  to the  District  Magistrate, the witnesses "did  not  dare  to depose  in open court against the detenu for fear  of  their lives".   It  appears  from the  counter  affidavit  that  a petition filed by the petitioner in the Calcutta High  Court to  challenge the very order of detention was  dismissed  on December 21, 1973.  The Seizure List which is Annexure B  to the  counter affidavit contains at the end a certificate  by the  Sub-Inspector  of Police who seized the  articles  that they  "appear to be serviceable Rly.  P.W.D.  materials  and Rly.  Carriage materials". This  strikes us as a typical case in which for no  apparent reason  a  person who could easily be prosecuted  under  the punitive  laws is being preventively detained.  The  Railway Property  (Unlawful  Possession) Act, 29  of  1966,  confers extensive  powers to bring to book persons who are found  in unlawful possession of railway property.  The first  offence is  punishable  with  a sentence of five years  and  in  the absence  of special and adequate reasons to be mentioned  in the  judgment  the imprisonment shall not be less  than  one year.   When a person is arrested for an offence  punishable under  that  Act, officers of the Railway  Protection  Force have  the power to investigate into the alleged offence  and the  statements  recorded  by  them  during  the  course  of investigation do not attract the provisions of section  162, Criminal  Procedure  Code. (See Criminal Appeal No.  156  of 1972  decided  on 23-8-1974).  If the facts  stated  in  the ground  are  true,  this  was an easy  case  to  take  to  a successful termination.  We find it impossible                             915 to  accept that the prosecution could not be proceeded  with as the witnesses were afraid to depose in the public against the  petitioner.  The Sub-Inspector of Police who  made  the Panchnama  we hope, could certainly not be afraid of  giving evidence against the petitioner.  He had made the  Panchnama of  seizure openly and to the knowledge: of the  petitioner. Besides,  if the petitioner’s statement was recorded  during the  course  of investigation under the Act  of  1966,  that itself  could be relied upon by the prosecution in order  to establish  the  charge that the petitioner was  in  unlawful possession of Railway property. The  petitioner  has  produced receipts in  respect  of  the purchases  made  by him and those receipts, show  that  even Sales Tax and Surcharge on Sales Tax was charged on the sale price.   All that the District Magistrate says in regard  to the. receipts is that "The receipts which have been  annexed to   the  writ  petition  would  not  be  of  any   material assistance".   This  statement makes no  sense  because  the receipts constitute the very foundation of the  petitioner’s defence to the charge that he was in unlawful possession  of railway property. We  are therefore of the opinion that on the material  which was: available to the detaining authority, it was impossible to  arrive  at  the conclusion that the  possession  of  the petitioner   was  unlawful.   It  seems  to  us   that   the prosecution was in all probability dropped as the petitioner might have been able to establish that his possession of the goods  was  not  unlawful.   The  petition  must   therefore succeed.  Accordingly, we make the Rule absolute and  direct that the petitioner shall be set at liberty forthwith. P.H.P. Petition allowed.

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