KISHORILAL BAHATI Vs. STATE
LAWS(GAU)-1951-7-3
HIGH COURT OF GAUHATI
Decided on July 09,1951

Kishorilal Bahati Appellant
VERSUS
STATE Respondents

JUDGEMENT

THADANI, J. - (1.) THIS is a petition by one Kishorilal Bahati under the provisions of Article 226 of the Constitution of India, directed against an order of detention, dated 24 -2 -51, passed against him under the Preventive Detention Act of 1950 (Act IV of 1950) as amended by Act IV of 1951, by the District Magistrate, Sibsagar. The grounds of detention as communicated to the petitioner are these: I. That on 6 -2 -51 Md. Sarif Ulla, Prof. Agriculture College, Borbheta went to your shop to purchase yarn, but you refused to give the yarn saying that you had no stock. 2. That on 7 -2 -51 Jogesh Chandra Charkravarty of Jorhat town purchased a pair of 10 yds. Dhuti from your shop @ Rs. 20/ - for which you refused to issue any cash memo. The ex -mill rate of the pair of dhuti was 7 -3 -3 pies plus the excise duty -/5/9 pies. 3. That on 8 -2 -51 Narayan Sarma, B. L. of Jorhat town went to you and wanted to buy textile dhuti, but you did not give him dhuti saying that you had no dhuti in your stock. 4. That on 9 -2 -51 Jatindra Kumar Saikia of Majgaon went to your shop to purchase dhuti, but you refused to give dhuti saying that you have no stock. 5. That on 9 -2 -51 Nani Gopal Dey of Jorhat town purchased a pair of dhuti from your shop @ Rs. 18/ - though the ex -mill rate was Rs. 7 -8 -9 pies plus excise duty -/5/4 pies. You refused to issue cash memo for the same. 6. That on 10 -2 -51, Dharmeswar Bora of Gohain Tekelagaon went to your shop in search of textile dhuti, yarn and markin for his own use; but you refused to sell saying that you had no such goods in stock. 7. That on 12 -2 -51, Debeswar Sarma, B. L., Ex -congress President, Provincial Congress Committee, Assam, sent his relative Jnandan Sarma of Jorhat town to purchase dhuti and accordingly he went to your shop, but you refused saying that you had no such stock. 8. That on 16 -2 -51, Dinesh Chakravarty of Jorhat town again went to you and wanted to buy textile dhuti, but on this occasion also you stated that you had no dhuti in stock. 9. That on 16 -2 -51, your firm, namely, Madanlal Kishorilal of Jorhat town, was searched under a search warrant and 270i pairs of textile dhuti, 6 thans of markin, and 67 thans (including pieces) of long cloth, and 8 bundles of yarn recovered from your shop house. Besides these, there are other facts which cannot be disclosed to you for the public interest.
(2.) THE petition before us was filed on 5 -4 -51. On 30 -5 -51 certain facts were brought to our notice, namely, that the statutory Advisory Board, in pursuance of the provisions of Section 8 of the Preventive Detention Act of 1950, was for the first time constituted by the Government of Assam by a Notification No. C. 216/51/159, dated 3 -4 -51. The following three gentlemen were appointed members of the Advisory Board: (1) Sri Rohini Kumar Chaudhuri (2) Sri Ikram Rasul and (3) Sri Kedar -mal Brahmin. The petitioner alleged that his case was not considered by all the three members, but by two only, as Sri Rohini Kumar Chaudhuri, a Member of Parliament, did not attend the sittings of the Board. In the original petition filed by the petitioner, various grounds were taken, but it is unnecessary to deal with them, as we propose to dispose of the petition on the ground taken in the supplementary petition, dated 30 -5 -51. Mr. Medhi for the State concedes that the case of the petitioner has not been considered by all the three members of the Board, but he argues that there is no provision in the Preventive Detention Act (IV of 1950) as amended by Act IV of 1951, which lays down that the case of a detenu shall be considered by all the members constituting the Advisory Board, and not by a majority of them. We think this contention is quite opposed to the provisions of Act IV of 1950 as amended by Act IV of 1951. Under Act IV of 1950, in pursuance of Section 8 of that Act, the Advisory Board was to consist of 2 persons. No provision was made as to the procedure which was to be followed in case there was a difference of opinion between the two members of the Board constituted under Section 8 of Act IV of 1950. By the amending Act IV of 1951, in Sub -section (2) of Section 8 of Act IV of 1950, for the word 'two' the word 'three' has been substituted. The proviso added by the amending Act of 1951 to Sub -section (2) of Section 8 of the Act of 1950 completely negatives the contention of Mr. Medhi that after 22 -2 -51 the case of a detenu can be considered by a majority of the members of the Board. The proviso added to Sub -section (2) of Section 8 of Act IV of 1950 is in these terms: Provided that where, immediately before the commencement of the Preventive Detention (Amendment) Act, 1951, any reference under Section 9, is pending before an Advisory Board, such Board may, for the purpose of disposing of that reference only, consist of two persons.
(3.) WE think the language of the proviso makes it clear that after 22 -2 -51, when the amending Act came into force, no reference can be disposed of by two members of the Advisory Board. Section 10 of Act IV of 1950, as amended, deals with the procedure to be followed by the Advisory Board. Originally no provision was made under Section 10 of Act IV of 1950 for cases in which a difference of opinion arose between the two members of the Advisory Board. Such a provision has now been made by Section 10 of the amending Act of 1951 by the insertion of Sub -section 2 -A after Sub -section (2) of Section 10 of Act IV of 1950. Sub -section 2 -A reads: When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. It is not disputed by Mr. Medhi that the order of detention passed against the petitioner is governed by the Preventive Detention (Amendment) Act of 1951 (IV of 1951). Having regard to the proviso added to Sub -section (2) of Section 8 and to Subsection 2 -A inserted after Sub -section (2) of Section 10 Of Act IV of 1950 by the amending Act of 1951, there cannot be any doubt that references made in respect of orders of detention passed on or after 22 -2 -51 must be considered by all the three members of the Advisory Board. ;


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