KANCHANLAL TRIKAMLAL PATEL Vs. SHYAMAL GHOSH DISTRICT MAGISTRATE SURAT

JUDGEMENT

(1.) The petitioner herein who is the father of detenu Sevantilal Kanchanlal Patel challenges by this petition the order of detention passed by the District Magistrate Surat -respondent No. 1 herein on September 23 1974 detaining Sevantilal Kanchanlal Patel of Surat with a view to prevent him from smuggling goods under sec. 3(1)(c) of the Maintenance of Internal Security Act 1971 The order has been passed in the following circumstances : The petitioner his son Sevantilal who happens to be the detenu and four other persons carry on the business of ANGADIA (Personal Messenger Service) in the name and style of Somabhai Kanchanlal & Company which is a registered partnership firm. It is the case of the petitioner that the firm is carrying on its business of ANGADIA for the last about 30 years having its main office at Surat and branch offices at 13 places inter alia at Bombay Ahmedabad Delhi Rajkot Baroda and Broach. The detenu being a partner of the said firm attends the main office at Surat since about two to three years He was arrested and detained in Sabarmati prison by the order of respondent No. 1 of September 23 1974 The case of the petitioner is that the business of ANGADIA consists of accepting articles and/or parcels from consignors who wish their articles and parcels to be carried to the places where the firm has its offices. The consignments are accepted for being carried to the consignees at the destination in consideration of a fixed rate of charge which varies according to the weight of parcels and distance to be covered. The said firm has got about 80 persons in its employment for purposes of its business. Any consignment which is accepted by the firm at any of its offices is carried by an employee to the Railway station where he books the articles with the Railways and obtains railway receipts for the parcels which are carried In the brake-van. The employee concerned also carries valuable articles on his person in a bag of valuables known as JOKHAM-THELI. The employee concerned would travel by the same train and would carry with him the railway bills for the parcels so booked. Another employee of the firm posted at the destination station receives these parcels and articles at the destination and takes these way bills and other valuable articles from the travelling employee. On the basis of these way bills the employee at the destination station would take delivery of parcels and would carry them to the branch office of the firm. It is the case of the petitioner that in course of these services it often happens that a consignee may himself come to the office and take delivery of the consignment or the article. It is the say of the petitioner that on average the firm accepts and delivers about 500 consignments every day from all of its offices. The responsibility of any loss or damage to the consignment or the article in the course of this service would be the responsibility of the firm but at no stage of the handling of these consignments or articles the firm would be required to examine or would in fact examine the contents of the consignments. It is the case of the petitioner that according to the conditions of the contract of carriage of these consignments and articles the consignors are directed not to consign any goods which are prohibited or to possess which would be a penal offence. In other words the business of the firm is to carry parcels in consideration of the moderate charges According to the petitioner it has happened sometime in past that a parcel was found to contain some illegal or prohibited articles or goods by the Customs Officials in the hands of the employee of the firm and such articles have been seized by the Customs authorities. However such occurrences are very few and far between and out of 180000 parcels carried per year by the firm hardly half a dozen of such incidents have occurred. But in all these cases it is the case of the petitioner the firm has not been held responsible nor on any single occasion any penalty has been imposed by the Customs Authorities either on the employee carrying such articles and from whom the same wore seized or on the firm and in cases where such penalty was imposed by the Customs officials the Government of India has in revision proceedings set aside the orders of penalty. It is also the case of the petitioner that the firm has got on its list of customers many Companies or Firms of repute and standing which have found it more convenient to avail of these services and send their consignments through the firm on account of quickness and efficiency of its services. It is the claim of the petitioner that it is on account of this prompt and efficient service rendered by the personal messengers that the services have become very popular in this Country. It is against this background the petitioner has challenged the impugned order which has been passed on the following grounds:

(2.) The jurisdiction of the Court while considering the orders passed under Maintenance of Internal Security Act 1971 has been considered by the Supreme Court on a number of occasions. In Haradhan Saha v. The State of West Bengal & others and Madan Lal Agarwala v. The State of West Bengal & others being Writ Petitions Nos. 1999 of 1973 and 1913 of 1973 respectively the Supreme Court was concerned with the constitutional validity of the Maintenance of Internal Security Act 1971 as well also with the legality of the orders passed detaining the petitioners in those cases by the West Bengal Government. The Supreme Court has reaffirmed the relevant principles which Court should bear in mind while considering the legality of an order made under the said Act. The relevant paragraph from the judgment of the Supreme Court reads as under:

(3.) It is no doubt true that these principles have been enunciated and reiterated on a number of occasions while dealing with detention orders passed under the Maintenance of Internal Security Act in the context available before it was amended by the Maintenance of Internal Security (Amendment) Ordinance 1974 (No. 11 of 1974) on 17th September 1974. By sec. 3 of the said Ordinance in sec 2 of the Principal Act that is the Maintenance of Internal Security Act 1971 after clause (c) the definition of word smuggling has been inserted by the following clause (cc):-