OM PRAKASH JOSHI ON BEHALF OF OM PRAKASH SHARMA @ GIGA SHARMA Vs. COMMISSIONER OF POLICE, CALCUTTA AND TWO ORS.

JUDGEMENT

(1.) This application by the cousin brother of the detenu under Sec. 491 of the Code of Criminal Procedure is for a writ in the nature of habeas corpus. The detenu was taken into custody on and from April 24, 1973, under an order issued by the Commissioner of Police, Calcutta, in exercise of the powers vested in him by sub -section (1) read with sub -section (2) of Sec. 3 of the Maintenance of Internal Security Act. 1971, to be hereinafter referred to as the "Act", with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of supplies essential to the community. At the time the detenu was taken into custody he was served with the ground of detention which, inter alia, states that the detenu on 19.4.73 at about 15 -30 hours dishonestly hoarded 1700 kgs. of the rice and 8484 kgs. of wheat, which was seized from the detenu's possession inside the Chaki shop styled "Basuki Flour Mills" at 16B, Madan Chatterjee Lane, Calcutta and which was alleged to have been kept there for disposal in the black market. Mr. Dutt, assisted by Mr. Ghosh and Mr. Chakraborty, learned Advocates, appeared for the petitioner and challenged the order of detention on the ground that the detaining authority failed to apply hit: mind in coming to his subjective satisfaction in the instant case and did not comply with the requirements of Sec. 3(3) of the Act and also challenged the ground as nonexistent. Mr. Roy, assisted by Mr. Moitra, learned Advocates, appeared for the State and opposed the Rule. An affidavit -in -opposition was affirmed by the detaining authority and a supplementary affidavit in support thereof was also affirmed by Sunil Kumar Chakraborty, Sub -Inspector of Police attached to the Enforcement Branch, Calcutta. The petitioner likewise affirmed an affidavit -in -reply as also a supplementary affidavit -in -reply to the aforesaid two affidavits -in -opposition.

(2.) Mr. Dutta contended that the detention order was based on a ground which was imaginary and contrary to the documents and papers in possession of the detaining authority and had no existence in reality. The petitioner in paragraph 12 of his writ petition asserted that the "Basuki Flour Mills" was a member of the Bengal Chaki Owners Co -operative Society Limited and it received wheat from the said Society for milling and distribution to the permit holders outside the Rationing area. The said Chaki shop received 102'53 kgs. of wheat from the said Society and after adding their opening balance and deducting the issues to the permit holders upto 10.3.73, the actual quantity in possession of the flour mill stood at 86 quintals after deducting the crushing allowance at the rate of 2 kgs. per quintal. As against this, 34.55 quintals of wheat was found in the said Chaki shop on 19.4.73 when the Enforcement Police raided the shop. The petitioner further contended that there was no actual weighment of the bags inspite of the request made by the detenu and the account books were also shown to the police officers. As for the rice it was contended that one Suraj Narain Kshetri of 12A, Madan Chatterjee Lane, Calcutta, a Khatal owner, brought 1700 kgs. of half -decomposed rice and rice sweepings to the said Chaki shop for grinding purpose for using the same as cattle fodder and the detenu also at the time of seizure gave out these facts to the police officers and in support of this statement in the writ application, aforesaid Suraj Narain Kshetri is stated to have affirmed an affidavit, which has been marked as annexure B to the writ petition. The detaining authority in his affidavit -in -opposition disputed that the articles seized under the seizure list were the commodities supplied by the Bengal Chaki Owners, Co -operative Society Limited or by one Suraj Narain Kshetri. In the supplementary affidavit affirmed by Sunil Kumar Chakraborty, Sub -Inspector of Police attached to the Enforcement Branch, it was stated that on enquiry it transpired that the seized wheat were not the wheat supplied to the chaki shop by the Bengal Chaki Owners Co -operative Society. It was further affirmed in the said affidavit that the deponent found on enquiry that the said flour mill was kept almost inoperative since January 1973. This deponent, it is to be pointed out, did not, choose to disclose the source of his information and verified all these statements as true to his knowledge. In the affidavit -in -reply affirmed on behalf of the detenu on 25.5.73 it was categorically stated in paragraph 10 that Basuki Flour Mill is a member of the Bengal Chaki Owners Co -operative Society and thus it received wheat from time to time for grinding and ultimate delivery to permit holders outside the Rationing area and that it had on the date of seizure 84.55 quintals of wheat left after delivery to the permit holders. In support thereof the deponent annexed a statement showing the wheat received from Bengal Chaki Owners Co -operative Society during the period from 28th March, 1970 to 26th February, 1973 and the ata delivered against government permit by the said flour mill more or less during that period. This statement which has been made annexure A to the affidavit -in -reply also contains the number of D.Os and permit numbers where necessary, as also the number of bags or quintals delivered against each. We are now informed by Mr. Roy appearing for the State that this statement of accounts was verified by the officers of the State and they were found to have more or less tallied. But Mr. Roy contends that these are disputed questions of fact into which the court need not enter in a proceeding of this description. It is well settled that the Court does not enter into a disputed question of fact in a proceeding of this description, but the alleged attack by the petitioner, if found to be substantial and accepted, would render the ground in the instant case nonest, for the very simple reason that the petitioner's book balance more or less tallied with the seized quantity of wheat from the shop on the afternoon of 19th April, 1973. Mr. Roy, however, contended that the wheat seized from the detenu's custody was of a different variety than the one supplied to him by the Bengal Chaki Owners Co -operative Society Limited. But this fact has not been specifically affirmed in the affidavit -in -opposition or the supporting affidavit by the investigating officer Sunil Kumar Chakraborty and they merely satisfied themselves by saying that the seized wheat were not the wheat supplied by the Bengal Chaki Owners Co -operative Society Limited. Assuming for argument's sake that the wheat that was seized from possession of the detenu was of a different variety, the question arises what happened to the book balance that is shown to have been made out by the petitioner and which practically tallies with the total quantity of seized stock. One way of looking at it would be that the quantity of wheat received by the Chaki shop from the Bengal Chaki Owners Co -operative Society was replaced or substituted by the equivalent quantity of wheat of different variety, but that is not the case of the detaining authority. Even assuming that the wheat seized was substituted for the book balance at Basuki Flour Mills as on 19.4.73, we find it difficult to hold that such substitution, if any, would amount to a prejudicial act affecting the supplies essential to the community. But on the materials made available to us, we are unable to say so, and there is no escape from the conclusion that the quantity of wheat found in Basuki Flour Mills on 19.4.73 and seized therefrom on that afternoon, more or less tallied with the book balance shown by the petitioner in his affidavit -in -reply, (Annexure A) and as the detaining authority has not made out the case either in the ground or in his affidavit -in -opposition that the wheat was of a different variety, we must hold that the ground in the instant case in nonest.

(3.) Mr. Dutt in the next place challenged the satisfaction of the detaining authority and contended that the ground, on the basis of which the satisfaction was armed at, was not in existence on the date when the order of detention was passed. In support Mr. Dutt contends that the detention, order was made on April 24, 1973, but the ground, that has been served on the detenu on 29.4.73, was authenticated and signed by the detaining authority on 28.4.73. So, if this ground came to be signed on the 28th. The detaining authority did not have this ground before him at the time when he made the order of detention which must have been based on materials other than those formulated in the ground. The detaining authority in paragraph 8 of his affidavit -in -opposition affirmed that on 24.4.73 all the relevant facts along with the connected case record and the draft ground of detention were placed before him by Mr. A. N. Ray, Deputy Commissioner of Police, Enforcement Branch, when he applied his mind and considered all relevant papers. After being satisfied, he approved the ground as drafted on 24.4.73 and passed the order of detention in the instant case. It is contended, by Mr. Dutt on the basis of this affirmation by the detaining authority that the satisfaction of the detaining authority as to the formulation of the ground was left to be made by somebody else and this was only approved by him and formulation was not of his own. Mr. Roy appearing for the State strenuously contended that the statement in the affidavit at best shows that the materials were placed before the detaining authority by a Deputy Commissioner of Police when he applied his mind and being satisfied, adopted the ground as drafted, and it would amount to his satisfaction all the same. We have carefully gone through paragraph 8 and it seems to us that the formulation of the ground, on the basis of which satisfaction was arrived at, was left to be considered by some one and the detaining authority merely approved his action. This would also be borne out from the fact that this paragraph of the affidavit was verified by the detaining authority as being true to his information derived from the records which he verily believed to be true. This seems to indicate that even in so far as the application of mind and satisfaction and approval of the ground are concerned, it was also affirmed as being true to detaining authority's information and not true to his knowledge. In the circumstances, we are unable to accept that the satisfaction in the instant case was that of the detaining authority himself and this contention of Mr. Dutt must, therefore, be accepted.