- (1.) BY order No. 1135 h S (C) dated 8th April. 1974, issued in exercise of powers conferred by section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the said Act), the petitioner was directed to be detained and thereafter by another order of that date bearing No. 1136 HS (C)it has further been directed that while on detention, the petitioner shall be treated as Division II under trial prisoner under the West Bengal Jail Code Against the said orders amongst others the petitioner on 5th December 1975 moved and obtained the Rule. At the time of issuing the said Rule, which was made returnable within ten weeks, it was directed that although no interim order was issued at that stage, the petitioner would be entitled to renew the prayer for necessary interim orders on that application with notice to the Respondent No. 4, viz. , the Superintendent, presidency Jail. It appears from the affidavit of service filed in Court that service on the said Respondent No. 4 has been duly made.
(2.) THE petitioner has renewed his prayer for ad interim orders not in terms of prayer (j) of the petition but in terms of prayer (i) of the same which is to the following effect : " (i) Injunction ordering the respondents and or each one of them to classify the petitioner as a Division I (Group C) under trial prisoner till the petitioner is released and or set at liberty and to grant him all facilities for family and or legal interviews twice a week in accordance with law".
(3.) IN support of his contentions mr. Gooptu submitted with reference to the statements contained in the petition about the social status, financial and educational qualification and also the way of life to which the petitioner is used to. These statements do get support from the statements in paragraphs 1,2,3 and 5 of the petition. That a part, with reference to the statements contained in paragraph 6 of the petition, it was also contended that the petitioner has several other ailment and he is also accustomed to special diet of a particular kind and he requires constant care and attention. It has been alleged that the petitioner is not getting such diet and in fact he is now detained with the convicted criminals and has been kept in sub-human conditions and environments. With reference to the provisions of Rule 617b of the Jail Code, which are to the following effect : "under trial prisoners shall be divided into two Divisions viz. , division I under trial and Division ii under trial. Division I under trial shall include all under trial prisoners who by social status education and habit of life have been accustomed to a superior mode of living division I under trial shall also include persons who have been arrested for offences in connection with political or democratic (including working class or peasant)movements provided that they have not been arrested for- (a) offences invo1ving elements of cruelty or moral degradation ; or (b) offences involving serious or premeditated violence ; or (c) serious offences against property ; or (d) offences relating to the possession of explosives, firearms and other dangerous weapons with the object of committing an offence or of enabling an offence to be, committed or (e) offences involving the illegal acquisition, storage or movement of an essential commodity, or other acts which impede, delay or restrict, except an furtherance of an industrial dispute as defined in the industrial Disputes Act, 1947- (i) any work or operation, or (ii) any means of transport or locomotion necessary for the production, procurement, supply or distribution of any essential commodity. Explanation in this rule "essential Commodity" has the same meaning as denned in section 2 (1)of the West Bengal Security Act 1950. (f) offences involving acts which injuriously affect whether by impairing this efficiency or impeding this working of anything or in any other manner what so ever or cause damage to (i) any building, vehicles, machinery, apparatus or other property used or intended to be used, for the purpose of Government or any local authority ; (ii) any railway, rolling stock of a railway or tramway or any vessel or aircraft; (iii) any building or other property used in connection with the production, distribution or supply of any essential commodity, any sewage works, mine or factory ; (ff) offences relating to contempt of Court; (g) offences involving abetment or incitement of offences falling within paragraphs (a), (b), (c), (d), (e), (f) or (ff) above. All other under trial prisoners shall be included in Division II under trial. Subject to any general or special order of the State Government, the classification of under trial prisoners shall be done by trying courts with the approval. (i) in Calcutta of the chief Presidency Magistrate ; (ii) elsewhere, of the district Magistrate. Such approval will not be necessary when orders on classification "re passed by the High Court or Courts of Session. It was submitted that in view of his social status, financial condition the the educational qualifications and habit of living and more particularly in view of his health, the petitioner should be allowed amenities applicable to Division i (Group 'c') under trial prisoner. In reply to the argument of the learned advocate appearing for the Respondent nos. 2-6, that in view of the provisions of section 5 of the said Act, which deals with the power to regulate place and conditions of detention, Mr. Gooptu contended that since on the date of the issue of the impugned orders there was no specification in terms of section 5 (a)of the said Act no the provisions of the of the Fail Code would hold good and would have application and the more so when the order of detention specifically mentions those provisions. At that stage Mr. Bose appearing for the Respondent No. I produced the West Bengal conservation of Foreign Exchange and prevention of Smuggling Activities order. 1975 framed under section 5 (a)of the said Act. The said order specifies the places where and the conditions under which persons in respect of whom detention orders have been made under the said Act, shall be liable to be detained. The said order in clause 3 has prescribed that every Central Jail. Special Jail. District or Subsidiary Jail in west Bengal shall be a place where any person, in respect of whom a detention order has been made, shall be liable to be removed and detained and clause 4 of the same provides that- (1) a person served with a detention order shall receive the treatment accorded to a Division II under trial prisoner as provided in the West Bengal Jail Code save as otherwise mentioned in the order, and (2) a person served with a detention order shall for the purposes of discipline and treatment, be subject to such provisions of the West Bengal Jail Code as applies to a Division II under-trial prisoner and are not inconsistent with this order or any other special orders made by Government in that behalf. The said order admittedly was made on 29th November, 1975 and relying on that Mr. Gooptu contended that as such, the same has no application in the instant case as the impugned orders were passed on 8th April, 1975. i. e. , long prior to the making of the said order. He, in short, submitted that since the said order is of a subsequent date than that of the impugned orders and has no retrospective effect or operation so the provisions of the Jail Code, as mentioned, should apply and as such, because of the said special features, the petitioner would be entitled to the Division and other amenities as prayed for. Prior to the making of the said order, a matter like the present one, cane up for consideration before this Court in the case of vashudev Parasram Samtani v. The State of West Bengal and 6 Ors [civil Rule No. 7768 ( W) of :1974] before A K Janah J and his Lordship, by the order, dated 20th January 1975 on consideration of the provisions of Rule 617 B of the West bengal Jail Code, allowed the application in part and directed the Respondents therein to place and consider the petitioner in that Rule as a Division I (Group C) under trial prisoner. Mr. Gooptu has submitted that when such an order has been made, the same is binding on me. There cannot be any dispute about the fact that the judgment of a learned Single Judge of co-ordinate jurisdiction is binding on another learned Judge of the same High Court. This view finds support from the case of jagadish Lal v. Director of Rationing, a I. R. 1975 Calcutta 471. Thus, 1 shall have no other alternative but to hold that the determination of A K. Janah J. is also binding on me and the more so when the same has also been made practically on the self-same grounds and facts if the petitioner succeeds in other points as raised by the Respondents and more particularly, on the points as noted hereafter. Mr. Gooptu has of course mention-ad further that the said determination of A K. Janah J. has also reached finality as the Respondent State of West bengal took an appeal, being F. M A. No. 884 of 1975 and in the said appeal, they made an application for stay of operation of the said order of A K Janah j. but hive not ultimately succeeded in having such order as ultimately by order, dated 23rd June 1975. the said application has been disposed of by making no order on the same From a reference to the records of the said F M A 884 of 1975 it further appears that liberty has however been given to the appellants to file fresh application for stay or modification of the interim order.;