DHANPATRAI PERIWAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is a Rule calling upon the State of West Bengal, Mr. S. N. Roy, Chief Secretary to the Government of West Bengal, Deputy Commissioner of the District of Darjeeling and the Superintendent of Jail, Darjeeling, to show cause why an order under Article 226 of the Constitution of India or under Section 491, Criminal P. C. should not be made and the person named Mahabir Prosad Periwal set at liberty.

(2.) On 20-8-1953, the said Mahabir Prosad Periwal was arrested at Kalimpong and thereafter detained at Darjeeling Jail. The said arrest and detention were made under an order dated 19-8-53 passed by Mr. S. Dutt Majumdar, Deputy Commissioner, Darjeeling, purporting to act under Section 3(2), Preventive Detention Act, 1950, (Act 4 of 1950). On the date of the arrest, i.e. 20-8-1953, grounds for detention were served on the said Mahabir Prosad Periwal. The present petition on which the Rule has been issued has been made by one Dhanpatrai Periwal, a cousin of the said Mahabir Prosad Periwal.

(3.) Mr. Kar appearing on behalf of the petitioner in the first place contended before us that the order of detention having been passed by Mr. S. Dutt Majumdar in his capacity as Deputy Commissioner and not as District Magistrate of Darjeeling was bad on the face of it. Mr. Kar contended that under Section 3(2), Preventive Detention Act power is given only to the officers named therein, i.e. the District Magistrate, Additional District Magistrate and the Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad to make an order of detention. A Deputy Commissioner has no such power. That being so, Mr. Kar contended, the present order of detention which was made by Mr. Dutt Majumdar in his capacity as the Deputy Com- missioner of Darjeeling was made without jurisdiction. Mr. Kar raised several other contentions but in view of the fact that we have accepted this contention of Mr. Kar and have come to the conclusion that the present order of detention was made without jurisdiction it has become unnecessary for us to express any opinion thereon.