Jagannadhadas, J. - (1.) These two applications raise almost identical questions for consideration & are accordingly deals with by this common judgment. The petitioner in cri. Misc. case No. 36/51 is one Ratanlal Gupta & in Cri. Misc. No. 37/51 is one Aska Ram Somani.
(2.) These two petitioners were arrested at about 3 A. m. early morning of 16-3- 51 at Berham-pur. This arrest was consequent upon investigation which followed a report received by the Sub-Inspector of Govt. Railway Police from the Sub Inapector, Town Police. The petitioners were produced on the 16th itself before the Sub Divisional Magistrate under police custody with a forwarding report that they were found smuggling 1467 yards of cloth from Berhampur at the railway station & are believed to have committed an offence under Section 7 of Act XXIV [24] of 1946. They were remanded to custody till 28-3-51. Meanwhile on 17-3-61 the petitioners moved for bail. This was opposed on the ground that the offence was presumed to relate the blackmarketing, that the sections were non-bailable, that there was a move for their detention under the Preventive Detention Act, & that the petitionera belong to Calcutta & may abscond or tamper with the evidence & their being released on bail would be very detrimental to investigation & that accordingly the bail was strongly objected to at that stage. The learned Sab-divisional Magistrate, however, made an order for release of the petitionera on bail of Rs. 20,000 each with two local sureties for similar sums & also imposed a condition that the petitioners should not move out of Berhampur town police station limits. Against this order, the petitioners moved the learned Ses. J. who passed an order on the 19th modifying the order passed by the S. D. O. He directed that the amount of bail should not move out of Berhampur town police station limits should be cancelled. Sureties were accordingly furnished on the 20th & the learned Sub-Divisional Magistrate being satisfied about the same, issued on the same day an order for the release of the petitioners. It is the case of the petitioners that when this order of release by the Sub-Divisional Magistrate dated 20th waa taken to the Jailor of the Berhampur District Jail, where the petitioners were lodged, the Jailor refused to release them stating that he received orders from the District Magistrate, Ganjam, for the detention of the petitioners under the Preventive Detention Act for the three months from 19-3- 51 to 18-6-51. These petitioners came up to this Court at that stage with an application each dated 27-3 51 alleging that no copy of the detention orders was served on them, though their signatures were taken on a paper purporting to be detention orders & that no grounds of detention were served on them as required by law & that they were not aware of having done any prejudicial act or having committed any offence. We admitted these applicationa on the 29th March & issued notice calling upon the Advocate General to supply copies of the orders of detention and the grounds therefor. Meanwhile, the grounds of detention appear to have been served on the petitioners in the District Jail, Berhampur, on 27-3-51. Thereafter on 9-4-51 the petitioners filed fresh applications challenging the grounds onthe following grounds amongst others: (a) "The detention is mala fide and is in the nature of punitive detention rather than of preventive detention. (b) The subject-matter of all the grounds of detection relate to one transaction which is the subject-matter in case No. G. R. 199/51 and consequently the detention of the petitioners on those vary grounds is patently mala fide and is an abuse of powers and illegal. (c) The petitioners having been arrested in connection with G. R. No. 199/51 and having been detained in custody and not being released even after he obtained orders of release from the sessions Court of Ganjam, and continuing the detention under the Preventive Detention Act after the Ses. J. ordered their release on bail is gross and flagrant abuse of the process of law."
(3.) From the papers filed before us on behalf of the State, it would appear that the Circle Inspector of Berhampur, moved the District Magistrate of Ganjam, for the detention of these two persons for three months by a letter addressed to him dated 16-3-51 stating therein inter alia as follows: "In addition to the specific case which has been started by the Sub- Inspector, G. R. P., Berhampur, which may not be successful, I recommend that these two per-sons may be detained for a period of three months under the Preventive Detention Act." In that letter he mentioned the circumstances which led to the arrest of these two persons and the evidence that has been so far gathered against them. The District Magistrate passed on 18th March, orders of detention for three months, in exercise of the powers conferred by Sub-clause (iii) of Clause (a) of Subsection (1) of Section 3, Preventive Detention Act, 1950 (IV [4] of 1950) as amended by the Preventive Detention (Amendment) Act, 1951, read with Section 4 thereof. The grounds of detention dated 25-3-51 which were served on the petitioner Ratanlal Gupta on 27-3-51 are as follows: "1. You were regularly coming to Berhampur with Aska Ram Somani and smuggling cloths to Calcutta for purpose of blackmarketine there. 2. 10 days prior to 15-3-51 you and Aska Ram Somani were seen at Berhampur by A. Kameswar Rao of Berhampur smuggling mill-made cloths in huge quantities from Berhampur to Calcutta. 3. On 4-3-51 you along with Aska Ram Somani purchased 900 yards of mill-made cloth from Berhampur and got them stitched by a tailor M. Chandra Rao of Bhimaraopeta of Berhampur as garments to avoid detention and smuggling them to Calcutta. 4. On 14-3-51 you along with Aska Ram Somani were noticed at Berhampur while you were purchasing mill-made cloth from different shops by A. Kameswar Rao of Berhampnr and wireless A.S.I. Srikar Satapathy of Berhampur and got them stitched as garments by G. Kali Das of Khassapa Street, Berhampur, to smuggle them to Calcutta without being detected by the police on the way. 5. While you and Aska Ram Somani were removing these cloths in three bundles from Berhampur Town to Berhampur Railway Station, it was seen by G. Gangadhar and A. Kameswar Rao of Berhampur. 6. You and Aska Ram Somani got these cloths bundles booked by the railwaj parcel clerk K.P. Rao of Berhampur Railway station at the railway station on 15-3-51 in the name of Gupta Brothers, Calcutta. 7. While these three bags were being loaded in the Madras Mail, they were detected and seized by the police. On verification it was found that about 1467 yards of mill-made cloths were in the three bundles. 8. As soon as these three bundles of cloth were seized by the police, you and Aska Ram Somani concealed your presence in Berhampur town with a view to avoiding arrest. Necessary searches were made and you along with Aska Ram Somani were arrested while both of you were concealing your presence on the verandah of Silla Rajagopalam of Berhampur whereas your and Aska Ram's bedding etc., were kept at the Berhampur Choultry near the railway station. It is therefore necessary for the maintenance of supplies and services essential to the community to prevent you from doing these acts detaining you under Act IV [4] oi 1950 as amended by the Preventive Detention (Amendment) Act, 1951. You have a right of representation against this order to the State Govt. which you may exercise by presenting it in writing through the District Magistrate, Ganjam, within 15 days from the receipt of these grounds." The grounds against Aska Ram Somani are identical with the names of Eatanlal Gupta and Aska Earn Somani interchanged.;