BARUN SENGUPTA Vs. STATE OF WEST BENGAL
LAWS(CAL)-1976-9-29
HIGH COURT OF CALCUTTA
Decided on September 17,1976

BARUN SENGUPTA Appellant
VERSUS
STATE OF WEST BENGAL Respondents


Referred Judgements :-

MAKHAN SINGH V. STATE OF PUNJAB [REFERRED TO]
ADDL. DISTRICT MAGISTRATE V. SHUKLA [REFERRED TO]
A K KRAIPAK VS. UNION OF INDIA [REFERRED TO]
SHAIK HANIF KAMAL SAHA GUDMA MAJHI VS. STATE OF WEST BENGAL :STATE OF WEST BENGAL :STATE OF WEST BENGAL [REFERRED TO]
BHUT NATH METE VS. STATE OF WEST BENGAL [REFERRED TO]
MATTULAL VS. RADHE LAL [REFERRED TO]


JUDGEMENT

- (1.)SREE Barun Sengupta, the petitioner herein, has been detained by virtue of an order dated 6th of October, 1975 made under subsection (1) of section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) hereinafter called MISA. He was arrested at Delhi on 24th of January, 1976 and was lodged in the Presidency Jail, Alipore as a Group b prisoner. He was, thereafter, transferred to the Alipore Central Jail. It appears that there was an order on the 19th of March, 1976 by the State Government directing his transfer from the Alipore Central Jail to Purulia District Jail. Though the petitioner had not been at the relevant time served with the order but he had apprehended transfer and therefore on the 22nd of March, 1976 he made an application under Article 226 of the Constitution for being considered as a group C prisoner, as well as, for not transferring the petitioner from Calcutta. He moved the application and obtained a rule nisi being C. R. No. 3582 (W) of 1976. On the 29th of March, 1976 the aforesaid matter was disposed of by consent of the parties, wherein it was recorded as follows:
"due to good office of Mr. Gupta Standing Counsel this matter has, been settled out of court on Government's agreeing to classify the petitioner herein in group C as contained in the West Bengal Maintenance of Internal Security Order, 1971, being rules under the Act. This rule is, therefore disposed of. There will be no order as to costs. This order is without prejudice to the rights and contentions of the parties and without prejudice to the contentions of the Government that this matter is not justiciable by the Court. "

(2.)ON the 4th of April, 1976, the petitioner was transferred in a police van to the Purulia District Jail. In the affidavit-in-opposition filed on behalf of the respondents and affirmed by one Nalini Kumar Chakraborty, Assistant Secretary, Home (Special) Department, Government of West Bengal on the 21st of June, 1976 in Paragraph 7 it has been stated that before such transfer the condition of the health of the detenue was checked by the Senior Medical Officer, Alipore Central Jail on the 3rd of April 1976 and the B. C. G. was seen by Dr. Amal Chakraborty and he was of the opinion that the detenue was fit to undertake the journey. In subsequent affidavit the said reports of the medical examination have been annexed. Thereafter it appears that the petitioner was examined by Dr. Amal Chakraborty at Purulia pursuant to the direction of this Court and he suggested that as better facilities were available at Bankura the detenue might be transferred to the Bankura District Jail on the 18th of June, 1976 and he was accompanied by a Doctor during his transfer and he was also examined by the doctor before his transfer to find out whether he was in a condition to undertake the journey. The doctor found that he was in a condition to undertake the journey. In this application under Article 226 of the Constitution the petitioner has challenged the original transfer to Purulia District Jail and has asked for a writ of mandamus directing the respondents to transfer the petitioner to a Central Jail like the presidency Jail, Alipore or the Alipore Central Jail where according to the petitioner proper arrangements and facilities exist for keeping Group C prisoners in accordance with Law.
(3.)AS mentioned hereinbefore the first challenge to the order of transfer is on the ground that the said order was passed malafide. The petitioner submitted that the order of transfer was made to circumvent the order of this Court whereby the petitioner has been given the facilities of group C prisoner. I am unable to accept this contention. As mentioned hereinbefore the order of transfer was made prior to the petitioner moving the Court for being afforded the facilities of Group C prisoner. Indeed the petitioner challenged in the application that he first made the proposed transfer of the petitioner from Calcutta to a outside Jail. The petitioner did not obtain any order restraining the transfer of the petitioner from Calcutta. Even if there is no res-judicate on the question of the Government's right to transfer the petitioner outside Calcutta as no order on that basis was made by this court though the transfer was challenged, as contended on behalf of the respondents it appears to me that it cannot be in any event be said that the order of transfer was passed to circumvent the order passed by this court granting the petitioner group C facility. Indeed as has been noticed such order was passed on Government's agreeing to grant the petitioner group C facilities. Further more it appears that the petitioner had moved this Court in contempt for alleged violation of the order of this Court by transferring the petitioner and this court has declined to issue a rule nisi on that basis. It was then contended that Group C prisoners were not liable to be transferred to any jail which was not a Central Jail. I am also unable to accept this contention. Section 5 of the Maintenance of Internal Security Act, 1971, provides that every person in respect of whom a detention order has been made shall be liable to be detained in such place or under such conditions including conditions as to maintenance of discipline, arrangement for breaches of discipline, as the appropriate government may by general or special order specify and it further provides that such person may be removed from one place of detection to another place of detention, whether within the same State or any other State by an order of the appropriate Government. The West Bengal Maintenance of Internal Security Order, 1972 being rules framed by virtue of Clause (a) of Section 5 of the Maintenance of Internal Security Act, 1971 regulates the conditions of detention of prisoners under the Act and Clause (3) of the said order provides 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 removed or detained. In view of the clear provisions of Clause (3) of the said order which authorises detenues under the said Act to be detained inter alia, in any district jail or subsidiary jail, in my opinion, it cannot be contended that a group C Prisoner under MISA cannot be transferred to a District Jail.
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