BALAKRISHNAN Vs. DISTRICT MAGISTRATE KOZHIKODE
HIGH COURT OF KERALA
DISTRICT MAGISTRATE, KOZHIKODE
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(1.) This is a petition under Art.226 of the Constitution by one Sri. A. Balakrishnan praying for the issue of a writ of Habeas Corpus for the release of his father Sri A. Karthikeyan who has been detained by the order of the 1st respondent, the District Magistrate and District Collector, Kozhikode, purporting to act under sub clause (i) of clause (c) of sub-s.(1) of S.3 of the Maintenance of Internal Security Act, 1971, for short, the Act, as amended by Ordinance No. 11 of 1974, the Maintenance of Internal Security (Amendment) Ordinance, 1974. The order, dated 30-9-1974 has been produced and marked as Ext. P1. The grounds of detention furnished to the detinue as required by Art.22(5) of the Constitution read with S.8 (1) of the Act are contained in Ext. P2 communication dated 3-10-1974 addressed by the 1st respondent to the detinue. It will be necessary to read the order Ext. P1 as well as the communication Ext. P2 and we shall extract the full text of the order Ext. P1 as well as the memorandum containing the grounds of detention:
"PROCEEDINGS OF THE DISTRICT MAGISTRATE, KOZHIKODE
No. S2. 29700 of 74 dt. 30-9-1974
Order under sub clause (i), of clause (c) of sub-s.(1) of S.3 of the Maintenance of Internal Security Act, 1971 as amended by Ordinance No. 11 of 1974.
Whereas from the materials placed before me I am satisfied that with a view to preventing Sri A. Karthikeyan S/o Ambali Krishnan Vydiar, House No. 1 of 10-A, West Hill, Kozhikode-5 from smuggling goods, it is necessary to detain him.
Now therefore in exercise of the powers under clause (a) of sub-s.(2) of S.3 of the Maintenance of Internal Security Act, 1971 I hereby direct that the said Karthikeyan be detained in the Central Jail, Cannanore.
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(2.) S2. 29700/74 Collectorate, Kozhikode Dt. 3-10-74
In pursuance of S.8(1) of the Maintenance of Internal Security Act, 1971 (Central Act 26 of 1971) Sri. A. Karthikeyan is informed that the grounds of his detention (not taking in those which are considered to be against the public interest to disclose) are the following:
On 4-8-1969 Customs Officers seized from the house of Sri. Karthikeyan, 90 bottles of foreign liquor, four transistor radios, one tape recorder and 2 Binoculars, all of foreign make. The Additional Collector of Customs, Cochin by his order C. No. VIII/10/2/69 'Cus. Adj. dt. 2-1-71 confiscated the
s seized and imposed a penalty of Rs. 20,000/- on Sri. Karthikeyan. He was convicted by the District Magistrate, Calicut and sentenced to pay a fine of Rs. 7000/- in default to three months simple imprisonment in his judgment in C. C. 287/71 dt. 10-9-71.
I have reliable information that Sri. Karthikeyan had amassed his wealth through smuggling activities and that he continues to indulge in smuggling.
I am therefore satisfied that with a view to preventing Sri. Karthikeyan from smuggling goods it is necessary to detain him. Therefore in exercise of the powers under clause (a) of sub-s.(2) of S.3 of the Maintenance of Internal Security Act. 1971 the detention of Sri. Karthikeyan has been ordered by me on the 30th day of September 74.
Sri. Karthikeyan is informed that he has a right to make a representation in writing against the order under which he is kept under detention. If he wishes to make any representation he should address it to the Chief Secretary to the Government of Kerala and forward the same through the Superintendent, Central Prison, Trivandrum within 15 days from the date of receipt of this memorandum. He is also informed that if he does not submit his representation against the order of detention within the aforesaid period to the Chief Secretary, it will be deemed that he has no representation to make.
District Magistrate &
District Collector, Kozhikode."
(3.) Counsel on behalf of the petitioner raised before us four points. The first related to the constitutional validity of Ordinance 11 of 1974. He emphasised that the order Ext. P1 must go for the short reason that all the grounds which were admittedly taken into account for the detention have not been communicated to the detinue and that this is clear from the communication Ext. P2. . Ext. P2 states that the detinue "is informed that the grounds of his detention (not taking in those which are considered to be against the public interest to disclose) are the following". On this aspect, the arguments were that it is clear from the communication Ext. P2 that certain grounds had not been furnished to the detinue and that actually such other grounds existed and that no grounds could be withheld in any circumstances. The third point urged was that S.8(1) of the Act had not been complied with in that the grounds were not furnished to the detinue within the period of five days provided by the section and that there were no exceptional circumstances that would justify the delay, and that the reasons stated in Ext. P3 are not sufficient to explain the delay in serving the grounds. It is seen from Ext. P1 that the order of detention was on 30-9-1974 and it is admitted that the grounds were served only on 8-10-1974. Finally it was argued that what was stated in the grounds would not spell out any prejudicial act. Further it was urged that even assuming that it was a prejudicial act, and that what was stated in Para.1 of Ext. P2 is relevant there is no nexus or rational connection between the ground and the detention as the incident stated in Para.1 of Ext. P2 took place in the year 1969. As regards the statement in Para.3 of Ext. P2 it was contended that it was far too vague and could not validly form a ground for detention.;
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