LexSRILAL SHAW versus THE STATE OF WEST BENGAL & ORS.
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A B 913 SRILAL SHAW v. THE STATE OF WEST BENGAL & ORS. December 4, 1974 [M. H. BEG, Y. v .. CHANDRACHUD AND A. c. GUPTA, JJ.] MISA-Prevc11ti1•e ])etention Act-Person who can be easily prosecuted under Punitive laws whether can be prevenrivefv> detained-Habeas Corpus- Constitutio11 of I11dia Art. 32. 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 C 19-8-1973 when petitioner's godown wa-s 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 (Un- lawful Possession) Act, 1966 but that case could not be proceeded with as according to the District Magistrate the witnesse' did not dare to depose in · D open court against the petitioner for fear of their lives. · E F G H HEW : This is a typical case in whir.:h 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 powen to bnni to book persons who. are found in unlawful posses- sion of rajlyway property. Statements recorded under tb,at Act during the course of investigation do not attract the provisions of section 1'62 of the Criminal Pro- cedure Code. The Sub Inspector of Police who made the Panchaoama could certainly not be afraid of giving evidence against the petitioner. Besides, if the statement of the detenue was recorded during the cours~ 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 materiaI 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 absGlute and the petitioner was directed to be set at liberty forthwith. [914 F-GJ 0RIGfi.IAL JURISDICTION : Writ Petition No. 453 of 1974. (Petition Under Article 32 of the Constitution of India) D. K. Sinha and K. R. Nambian, for the Petitioner; P. K. Chakravarty, and G. S. Chatterjee, .for the Respondent. The Judgment of the Court was· delivered by CHANDR.Acrruu, 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 mainten- ance of suppl'ies and services essential to the community. The particulars of the ground of detention furnished to the peti- tioner state that on August 19, 1973 when the petitioner's godown at Naihati was searched property belonging to the Railway which was 914 SUPREME COURT REPORTS [1975] 2 S.C.R. not available in the open market and which was of the approximate value of Rs. l.180.50 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 arti- cles are available in the open market. The petitioner· claims to have purchased sevei:al such articles of scrap metal on April 12 and June 28, 1973 from a firm called R. Choudhary & Co. doing business at l 2 l / 4A, Manikotla Main Road, Cal<:utta. The petitioner has pro- duced 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
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