1951 Supreme(Ori) 21

HIGH COURT OF ORISSA
Jagannadhadas And Narsimham, JJ.
RATANLAL GUPTA - Appellant
Versus
DISTRICT MAGISTRATE OF GANJAM - Respondent
Criminal Misc.  37  Of  1951
Decided On : MAY 03, 1951

An order of preventive detention based on substantially the same facts which constitute an offence and in respect of which a criminal prosecution is pending, would amount to an abuse of the powers of preventive detention and that sucb a detention order would be illegal.

Headnote:

PREVENTIVE DETENTION - Detention order passed against a person on grounds which if true constitute an offence is an abuse of powers, if, at the time, the truth of the facts alleged is pending investigation by a criminal Court and is hence illegal.

Fact of the Case:

The petitioners were arrested on 16-3-51 at Berhampur. This arrest was consequent upon investigation which followed a report received by the Sub-Inspector of Govt. Railway Police from the Sub Inspector, Town Police. The petitioners were produced on the 16th itself before the Sub Divisional Magistrate under police custody with a forwarding report that they were found smuggling 1467 yards of cloth from berhampur at the railway station and are believed to have committed an offence under Section 7 of Act XXIV [24] of 1946. They were remanded to custody till 28-3-51. Meanwhile on 17-3-61 the petitioners moved for bail. This was opposed on the ground that the offence was presumed to relate the blackmarketing, that the sections were non-bailable, that there was a move for their detention under the Preventive Detention Act, and that the petitionera belong to Calcutta and may abscond or tamper with the evidence and their being released on bail would be very detrimental to investigation and that accordingly the bail was strongly objected to at that stage. The learned Sab-divisional magistrate, however, made an order for release of the petitionera on bail of Rs. 20,000 each with two local sureties for similar sums and also imposed a condition that the petitioners should not move out of Berhampur town police station limits. Against this order, the petitioners moved the learned Ses. J. who passed an order on the 19th modifying the order passed by the S. D. O. He directed that the amount of bail should not move out of Berhampur town police station limits should be cancelled. Sureties were accordingly furnished on the 20th and the learned Sub-Divisional Magistrate being satisfied about the same, issued on the same day an order for the release of the petitioners. It is the case of the petitioners that when this order of release by the Sub-Divisional Magistrate dated 20th waa taken to the Jailor of the Berhampur District Jail, where the petitioners were lodged, the Jailor refused to release them stating that he received orders from the District Magistrate, Ganjam, for the detention of the petitioners under the Preventive Detention Act for the three months from 19-3- 51 to 18-6-51. These petitioners came up to this Court at that stage with an application each dated 27-3-51 alleging that no copy of the detention orders was served on them, though their signatures were taken on a paper purporting to be detention orders and that no grounds of detention were served on them as required by law and that they were not aware of having done any prejudicial act or having committed any offence.

Finding of the Court:

The Court held that the detention order in such cases where the prosecution is pending or imminent, is a serious step for the executive authorities to take. It must be made with full appreciation of the fact that the order in such cases has grave consequences on the judicial trial and must bear scrutiny of the Courts on the footing that such an order was called for notwithstanding such appreciation. A detention order passed without such appreciation may well be held to be lacking in bona fides on the facts of an individual case.

Issues: Whether an order of preventive detention based on substantially the same facts which constitute an offence and in respect of which a criminal prosecution is pending, would amount to an abuse of the powers of preventive detention and that sucb a detention order would be illegal.

Ratio Decidendi: The Court held that an order of preventive detention based on substantially the same facts which constitute an offence and in respect of which a criminal prosecution is pending, would amount to an abuse of the powers of preventive detention and that sucb a detention order would be illegal. The Court further held that the detention order in such cases where the prosecution is pending or imminent, is a serious step for the executive authorities to take. It must be made with full appreciation of the fact that the order in such cases has grave consequences on the judicial trial and must bear scrutiny of the Courts on the footing that such an order was called for notwithstanding such appreciation. A detention order passed without such appreciation may well be held to be lacking in bona fides on the facts of an individual case.

Final Decision: The Court rejected the applications of the petitioners and held that it was not prepared to interfere with the detention orders against the petitioners at that stage.