judgement:
ION: Civil Appeal Nos.
946 of 1975 & 1251 of 1975.
From the Judgment and order dated 11.10.1974 of the Calcutta High Court in Estate Duty Reference No. 117 of 1971.
Dr. Shankar Ghosh, D.P. Mukharji and G.S. Chatterjee for the Appellant in C.A. No. 946/75 and for Respondent in C.A. No. 1251 of 1975.
C.M. Lodha, Ms. A. Subhashini and K.C. Dua for the Respondent in C.A. No.946/75 and for the Appellant in C.A. No. 1251 of 1975.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These appeals, by certificate, under Section 65 of the Estate Duty Act of 1953 ( 'Act ' for Short) one by the accountable person and the other by the Deputy Controller of the Estate Duty arise out of and are directed against the Judgment, dated 11.10.1974 of the High Court of Calcutta, answering, in a reference under Section 64(1) of the 'Act ', the question of law referred for its opinion.
The matter pertained to the determination of the principal value of the Estate passing on the death, which occurred on 24.3.1960, of a certain Satya Charan Srimani.
Dipti Narayan Srimani, appellant in CA 946/1975 is the son of the deceased and is the accountable person.
The said Satya Charan Srimani during his life time had executed three trust deeds, dated, 8.12.1947, 21.9.1953 and 4.10.1959 respectively.
In the proceedings, the nature and effect of the dispositions made under the deeds of the trust, dated, 21.9.1953 and 4.10.1959 fell for consideration.
Under the deed, dated, 21.9.1953, Satya Charan Srimani as settlor, transferred upon trust to himself as trustee 4 items of immovable property, viz. 130 and 133, upper circular Road; and 32/5 and 32/5 Beadon Street, Calcutta.
The objects and purposes of the trust, broadly stated, were: (i) the conduct of the daily worship and sevas of the Deity Sree Sridhar Jiu; 274 (ii) the carrying out of certain charitable acts, deeds and things mentioned in schedule B of the deed; (iii) the making of provision for the maintenance of himself and the persons mentioned in the said deed.
The trustee was required, after defraying taxes and other out goings, to accumulate 1/4th of the net income to be set apart for purposes of effecting certain additions and alterations to the properties; to make over another 1/4th of the net income to the shebait for the conduct of the daily and periodical pujas, worship and rituals of the said deity; another 1/4th for the charities mentioned in the deed and the remaining 1/4th for the personal benefit of the settlor during his life time and to his heirs thereafter.
After the developmental works were completed, the proportions of the shares allotted to various objects were suitably modified in that 7/16th share was to be made over to the shebait; 4/16th share to be spent for charitable purposes and 5/16th for the benefit of the settlor and his heirs.
Under the deed dated, 4.10.1959, the settlor transferred upon trust to himself and his son Dipti Narayan Srimani as Trustees, six other properties, one of them situate in Varanasi, for the conduct of daily worship and periodical festivals, rituals and ceremonies of the deity, Shri Ishwar Gobinda Jiu; for certain charitable purposes and also for the benefit of himself and his heirs.
The settlor provided for his residence, free of rent, in one room on the ground floor in the Varanasi property.
A 1/4th of the net income of the trust properties, after defraying expenses and taxes, was to be paid to the shebait for the conduct of the worship, rituals and services of the deity Shri Ishwar Gobinda Jiu; another 1/4th to be spent on the charitable purposes mentioned in the deed and the balance of 1/2 for the development, additions and alterations of two of the trust properties viz. No. 41 & 42 Macleod Street Calcutta.
After completion of the developments and alterations, the said 1/2 share was stipulated to go for the benefit of the settlor during his life time and thereafter to his heirs.
Under both the dispensations, the settlor constituted himself the shebait.
In the proceedings of assessment to estate duty, the question arose whether the trust deeds attracted and fell within Section 12(1) of the 'Act '.
The accountable person contended that the four trust properties under deed dated 21.9.1953 could not be said to be "Settled Property" within the definition in Section 2(19) and that at all events what must be held to pass would only be a 1/4th share, 275 corresponding to the benefit reserved for the settlor and his heirs.
Similarly, in respect of the six trust properties covered by the deed, dated 4.10.1959, it was urged that the properties were not "Settled Properties" and that at all events only 1/2 of the property so passed.
The Deputy Controller of Estate Duty; the Appellate Comptroller of Estate Duty in the first appeal and the Income Tax Appellate Tribunal, Calcutta, in the second appeal, held that the entire subject matter of the two deeds must be held, or deemed, to pass on death.
The value of the properties constituting the subject matter of deed dated, 21.9.1953 estimated at Rs.4,69,287 and those constituting the subject matter of the deed, dated, 5.10.1953 at Rs.1,27,400 were accordingly, included in the principal value of the estate passing on death.
On 20.2.1971, the Tribunal at the instance of the accountable person stated a case and referred under Section 64 of the 'Act ' the following question of law for the opinion of the High Court: "Whether on the facts and in the circumstances of the case and on a proper interpretation of the trust deeds dated, 21.9.1953 and 4.10.1959, the properties comprised therein are dutiable under Section 12(1) of the Act.
A Division Bench of the High Court by its judgment, dated 11.10.1974 held that so far as the four properties comprised in the deed, dated 21.9.1953 were concerned, they were "Settled Property" within the meaning of Section 2(19) and that Section 12(1) was attracted.
The High Court observed: ". .So far as the deed dated 21.9.1953 is concerned, by the said deed the property has been made debutter and there is, therefore, a dedication in favour of the deity; and as the settlement by the said deed creates or results in a dedication or endowment, the properties settled by the said deed should, therefore, be considered to be settled properties, in view of the specific provision contained in sec.
2(19) relating to dedication or endowment . " ".
The provisions contained in the deed dated 21.9.1953 which we have earlier considered, clearly indicate that the settlor has reserved to himself an interest in the properties within the meaning of section 12(1) of the Act.
He has 276 expressly reserved for himself for life one fourth share of the income of the properties before development and seven sixteenth share of the income of the properties after development.
Section 12(1) is therefore clearly attracted to the properties mentioned in the said deed dated 21.9.1953 . " However, the High Court took a different view in relation to the properties covered by the deed, dated 4.10.1959 and held that they were not hit by Section 12(1).
The High Court said: ".
As in our opinion the properties covered by the deed dated 4.10.59 are not sattled properties, section 12(1) cannot apply to the said properties . " Concluding the High Court held: ". .
We must therefore, hold that section 12(1) of the Act applies to the trust deed dated 21.9.1953 and the said section has no application to the trust deed dated 4.10.1959.
Accordingly we answer the question by saying that the properties comprised in the trust deed dated 21.9.1953 are dutiable under section 12(1) of the Estate Duty Act and the properties comprised in the trust deed dated 4.10.1959 are not dutiable under section 12(1) of the Estate Duty Act . " The Division Bench, however, left open the question, whether the properties, constituting the subject matter of the trust deed, dated 4.10.1959, would attract any other provision of the Act, to be decided by the appropriate authority.
From this opinion expressed by the High Court, both the accountable person and Deputy Controller of the Estate Duty have come up in appeal the former aggrieved by the inclusion of the whole of the properties, comprised in the trust dated 21.9.1953 in the principal value of the estate; and the latter by the exclusion of the properties constituting the subject matter of the trust dated 4.10.1959 from the principal value of the estate.
We have heard Dr. section Ghosh, learned Senior Advocate for the accountable person and Shri C.M. Lodha, learned Sr.
Advocate for the Revenue.
277 Having regard to the career of this litigation and the varying shades of the legal thought attracted by it both in the statutory appeals and before the High Court, one is tempted to recall the reflections of Diplock L.J. in Re: Kilpatrick 's at 1370.
"As in nearly all appeals about estate duty, I reach my decision without confidence.
Were I a betting man I should lay the odds on its being right at 6 to 4 (i.e., 3 to 2) on or against.
If ever a branch of law called for reform in 1966, it is the law relating to estate duty.
It ought to be certain: it ought to be sensible it is neither . ." In Re Weir 's Settlement , Cross J had said: "The facts are simple enough, but it will not surprise any one acquainted with this branch of the law to learn that the argument lasted over four days during which counsel at all events wasted no words and that some thirty authorities, many of them in the House of Lords, were referred to.
The law of estate duty has indeed now attained a degree of refinement which would have gladdened the heart of Lort Sd.
Leonards.
" The legislative expediencies in the development of the law of Death Duties in England reflect an on going, and no less interesting, interaction between the resourceful ingenuity of the conveyancing lawyer on the one hand and the legislative vigilance to plug the susceptibilities of the law that sustain tax planning, on the other.
The handy tool of the conveyancing lawyer was the notion in the law of Real property that ownership was detached from 'land ' and was attached to something called the 'estate ' in land.
The submissions of the learned counsel in the appeals are patterned substantially on the ground covered before the High Court.
In support of the accountable person 's appeal Dr. Ghosh submitted: a) First, that, on a proper construction of the two deeds, what must be held to constitute their subject matter are only the shares in the properties corresponding to the interests intended for the benefit of the deities and the charities; and that the interest in the property correspond 278 ing to the benefit retained by the settlor was not the subject matter of the disposition at all; b) Secondly, that, even if both the documents might admit of being called "settlements" in a wider sense the properties dealt with thereunder were not "Settled Property" within the meaning of Section 2(19) as there was no in tervening limited interest before a final vestiture of the ownership; and c) Thirdly, that, at all events, what must be held to attract and fall within the mischief of Section 12(1) and be deemed to pass on death would only be the value of such share as corresponds or referable, to the quantum of interest so reserved by the settlor namely 5/16th share in the properties covered by the first document and 1/2 share in the properties comprised in the second document and not the entire value of all the properties.
Shri C.M. Lodha learned Senior Counsel for the Revenue submitted that this case was frank case of what, by definition, attracted the wider net of Section 12(1) and that resort to the implications of "Settled Property" under Section 2(19) was unnecessary once it is clear that there is a "settlement" within the meaning of Section 12(1) coupled with the reservation of an interest however small.
Learned Counsel submitted that the distinction made by the High Court between the properties covered by deed, dated, 21.9.1953 on the one hand and those covered under deed, dated, 4.10.1959 on the other, is, in the ultimate analysis, a distinction without a difference.
9.The first contention of Dr. Ghosh pertaining to what, according to him, should be held to be the subject matter of the trust deeds, is essentially a matter of construction of the deeds.
There is, no doubt, a discernible difference between a case of settlement of property with reservation of a benefit to the settlor on the one hand and the case where what is settled is only a share or interest or part of the property, excluding the part or the share corresponding to the benefit that the settlor has chosen to retain.
There is, indeed, no transfer at all in the latter case.
Dr. Ghosh says that there is really no transfer of the share corresponding to the benefit reserved in both the cases.
This is the construction learned counsel wants the court to place on the two deeds.
279 In St. Aubyn vs Attorney General (See 1951 (2) All England Reports 496), Lord Radcliffe brought out this distinction between what was transferred and what was retained: . .it is the possession and enjoyment of the actual property given that has to be taken account of, and that if that property is, as it may be, a limited equitable interest or an equitable interest distinct from another such interest which is not given or an interest in property subject to an interest that is retained, it is of no consequence for this purpose that the retained interest remains in the beneficial enjoyment of the person who provides the gift . " The distinction between the two types of dispositions is brought out in the context of Section 10, in Controller of Estate Duty, A.P. Hyderabad vs Smt.
Godavari Bai, ; at 635: ".
In other words if the deceased donor limits the interest he is parting with and possesses or enjoys some benefit in the property not on account of the interest parted with but because of the interest still retained by him, the interest parted with will not be deemed to be a part of the estate of the deceased donor passing on his death for the purpose of section 10 of the Act.
It is these aspects which mark the distinction between the two leading cases, namely Chick 's case 1959 3 ITR (ED) 89 and Munro 's case ; (supra).
As we shall indicate presently Chick 's case falls within the first category while Munro 's case falls within the other category . ." Again, in the Controller of Estate Duty, Kerala vs M/s. R.V. Vishwanathan & Ors., ; at 97 & 99 it was observed: "14.
The question as to whether gifted property should be held to be a part of the estate of the deceased donor passing on his death for the purpose of Section 10 of the Act is not always free from difficulty.
It would depend upon the fact as to what precisely was the subject matter of the gift and whether the gift was of an absolute nature or whether it was subject to certain rights.
There is a fine but real distinction between the two types of cases . ." ". .To put it in other words, if the deceased owner 280 delimits the interest he is parting with and possesses and enjoys some benefit in the property not on account of the interest parted with but because of the interest still retained by him, the interest parted with shall not be deemed to be part of the estate of the deceased donor passing on his death for the purpose of Section 10 of the Act.
The principle is that by retaining something which he has never given, a donor does not bring himself within the mischief of that section, nor would the provisions of the section be attracted because of some benefit accruing to the donor on account of what was retained by him . ." 10.
In the present case, any possibilities of such an argument are ruled out by the explicit terms of the deeds.
The subject matter of the deeds are not, respectively, 11/16 share and 1/2 share in the properties.
The whole of the properties are conveyed upon trust.
There is, therefore, no scope for this submission.
The first contention of Dr. Ghosh, therefore, fails.
The second contention of Dr. Ghosh is that provisions of section 12(1) are not attracted as the properties do not fill the bill as "Settled Properties" within the meaning of Section 2(19) of the Act.
Section 2(19) which defines "Settled Properties" and 'settlement ', respectively provides: " "Settled property" means property which stands limited to, or in trust for, any persons, natural or juridical, by way of succession, whether the settlement took effect before or after the commencement of this Act; and "settlement" means any disposition, including a dedication or endowment, whereby property is settled;" The statutory definition of "Settled Property" and "settlement" is such that while it is possible to say that all "Settled Property" is the subject matter of "settlement", conversely, however, all subject matter of 'settlement ', need not necessarily and proprio vigore, become "Settled Property".
The latter concept requires for its satisfaction certain specific incidents and consequences of a settlement".
Section 12(1) provides: 281 12(1).
Property passing under any settlement made by the deceased by deed or any other instrument not taking effect as a will whereby an interest in such property for life or any other period determinable by reference to death is reserved either expressly or by implication to the settlor or whereby the settlor may have reserved to himself the right by the exercise of any power, to restore to himself or to reclaim the absolute interest in such property shall be deemed to pass on the settlor 's death . " Section 12(1) refers to and deals with a case of property passing under a "settlement" in which the settlor had reserved to himself an interest in such property either expressly or by implication.
Apparently, on its language, the section does not draw upon the incidents and implications of "Settled Property" for the satisfaction of its requirements.
The passing of property under a "settlement" which means "any disposition including a dedication or endowment whereby property is settled" coupled with a reservation of an interest in the property would suffice.
The further incident that the properties covered by the settlement must in addition partake of the character of "Settled Property" and accordingly, should stand "limited in trust for any person, natural or juridical, by way of succession" etc.
are not to be held as part of the requirements of Section 12(1).
Those incidents of "Settled Property" need not be imported into the ingredients of Section 12(1) which would be satisfied if there is a "settlement" as defined under the second part of Section 2(19) and if, there is reservation of an interest by the settlor in addition.
The two deeds clearly answer the description of 'Settlement ' as defined under Section 2(19), viz. that there is a "disposition including a dedication, whereby property is settled." Indeed under both the deeds, the reservations of the benefit of the income from the trust properties were made in favour of the settlor.
These reservations by themselves, in our opinion, bring the properties within the net of Section 12(1).
This should dispose of the second contention of Dr. Ghosh.
In addition, the settlor in this case constituted himself during his life time and thereafter constituted his heirs as the shebaits of the two deities.
Indeed where while endowing properties to a deity, the settlor stipulates that he shall during his life time and thereafter his heirs be the shebaits of the deity, the settlor can possibly be said to provide not only for certain duties to be vested in connection with the endowment 282 but also secures a beneficial interest in the property.
The following observations of Mukherjea, J. in Angurbala Mullick vs Debabrata Mullick, at 1132 as to the nature of the office of a shebait may be recalled: ".
The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established.
It is settled by the pronouncement of the Judicial Committee in Vidya Varuti vs Balusami that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English Law.
In English Law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui gue trust.
In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager.
But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as a mere office.
The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property . " Again, in Kalipada Chakraborti & Anr.
vs Palani Bala Devi & Ors., at 516 & 517 it was held: ".
Whatever might be said about the office of a trustee, which carries no beneficial interest with it, a shebaitship, as is now well settled, combines in it both the elements of officer and property . " ".
There could be no doubt that there is an element in the shebaiti right which has the legal characteristics of property; but shebaitship is property of a peculiar and anomalous character, and it is difficult to say that it comes under the category of immovable property as it is known in law . " 13.
It is true that the reservation of "interest", so as to attract Section 12(1), must be in the property as such and that mere collateral benefits reserved by the settlor emanating from some other property or some other source, independent of the property so settled, will not 283 attract the section.
In Controller of Estate Duty vs R. Kanakasabai & Ors., at 257 this Court, in the context of Section 10, observed: ".
The provisions for annual payments and maintenance made in the deeds as seen earlier are not charged on the properties settled.
Hence the deceased cannot be said to have retained and interest in the properties settled.
Therefore, it cannot be said that he retained any benefit either in the properties settled or in respect of their possession . " But in the present case, benefits reserved emanate from the very properties constituting the subject matter of the settlements and cannot be said to be collateral in their nature.
The distinction between a case of a benefit arising "collaterally" and a case of the benefit being reserved by "implication" would require to be kept clearly distinguished.
Having regard to the special nature of the office of a shebait and the rights and interests that to with it, it is possible to contend that when a settlor endows the property to an idol and reserves the right of shebaitship to himself, he would be reserving an interest in the property.
It is, no doubt, true that while dealing with a case of cessor of interest, under section 7 of the Act, of an elected Mahant in Math properties, it was held by this court that no interest passes on the death of Mahant duly elected, and that the provisions of the Act are not attracted (See: Controller of Estate Duty, Bihar vs Mahant Umesh Narain Puri, But the case of a settlor who himself endows property to an idol and constitutes himself a shebait is obviously different.
But we need not, in this case, finally pronounce on the effect of reservation of shebaitship by a settlor in the context of Section 12(1).
But even to the extent, the argument that for purpose of Section 12(1) the property must answer the description of "settled property" goes the expression "by way of succession" import of the words were stated in Attorney General vs Owen, (See 1899 2 Queen 's Bench Division 253 at 266) by Kennedy, J: ". "By way of succession" seems to me to be a phrase to which one ought, in dealing with this Act, not to assign a narrow or strictly technical meaning, but to treat it as equivalent to "successively upon death"; and substantially un 284 der the present will the property out of which the annuities are paid is property to which, so far as benefit is concerned, the annuitants are entitled during life, and which, so far as benefit is concerned, passes to the residuary devisees upon the deaths of the annuitants.
There is a succession, in a popular but correct sense, in the enjoyment of this portion of the testatrix 's residuary estate which comes to them upon the decease of the annuitants . " Following this view, the Allahabad High Court in Hamid Hussain vs Controller of Estate Duty, held (See at 315): ".
The settlor clearly contemplated that successive generations would enjoy the benefit of the wakf and thereafter it would pass to the persons covered by the charitable purposes.
It seems to us that upon these considerations the property must be considered to be "settled property" and the wakf, being a dedication of endowment, must be considered to be a settlement within the meaning of section 2(19).
Inasmuch as the property comprised in the wakf passes under a settlement, it is property which falls within the scope of section 12 . " The terms of the two documents in our opinion satisfy even this extended requirement of the case.
What remains to be considered is the third contention of Dr. Ghosh.
Learned Counsel says that, at all events, all the properties covered by the two settlements cannot be held to pass under Section 12(1) but only the value of the share of the properties corresponding to the benefit reserved must be held to pass.
There are again certain fallacies in some of the assumptions basic to this contention.
The quantum of the interest reserved does not determine the extent of the property passing under Section 12(1).
This is not a case where several distinct properties or parcels are settled and a beneficial interest is reserved out of one alone when it might be possible to predicate that all properties comprised in such settlement, which must be held to be a composite deed dealing with several items do not attract Section 12(1) but only the parcel out of which an interest is carved out and reserved for the settlor 's benefit.
Under Section 12(1) if the deceased makes a settlement and reserves for himself an interest therein for life or for 285 any period determinable with reference to death, the whole of the property so settled would be deemed to pass.
The interest reserved might be very small indeed; but however small the interest, when by virtue of such a reservation a settlement falls within the purview of Section 12, the whole property would be deemed to pass.
This is what was clarified in Attorney General vs Earl Grey, at 32. ".
But it is to be observed that the words are "an interest in such property." Any interest however small will do, provided it issues out of such property that is, out of the property sought to be taxed.
I agree that if several parcels of land be given by one and the same deed of gift, and an interest be reserved to the donor out of one of those parcels only, estate duty would not be payable upon the whole subject matter of the gift, but only out of that specific portion in which the interest is expressed to be reserved.
But that is not the case here . " The expression 'interest ' in Section 12(1) is also not used in a restrictive sense.
Wills, J. in Attorney General vs Heywood, said: ".
This application of the word 'interest ' is not confined to a vested or a necessarily contingent interest.
The Act was meant to cast a wider net than such a construction would imply . . .
The Act of Parliament was meant to meet cases in which an interest of some sort was conferred and which were not already provided for, and I think the language used is sufficiently comprehensive to include the present case . " This colloquial and somewhat liberal connotion of 'interest ' was adopted and followed in Attorney General vs Farrel, Greer, L.J. said: "In that case the only interest which the settlor retained in the sum of money settled by him was the expectation, well founded or ill founded, that the trustees would exercise their discretion in his favour; but the trustees might quite lawfully have refused to give him anything, and have distributed the income among his wife and children.
He had a mere expectation that the discretion which was vested in 286 the trustees might be exercised in his favour, either partly or entirely, and that in my judgment is exactly the position that Major Alfred Stourton was in this case.
He had no legal right to force the trustees to give him anything; at the same time he had in a colloquial sense an interest in the estate, because it was an estate out of which something might be allotted to him in the discretion of the trustees.
Whether that is an interest within the meaning of the Act of 1881 has, I think, been determined by Attorney General vs Heywood, and the decision has stood since the year 1887, a period of forty three years.
" There is, thus, no substance in the third contention either.
In the result, for the foregoing reasons, Civil Appeal 1251 of 1975 of the Deputy Controller of the Estate Duty is allowed and the question referred for the opinion is answered in the affirmative and against the assessee.
We hold that while the High Court was right in its view that the properties covered by the deed dated 21.9.1953 were required to be brought to charge under Section 12(1), we are unable to agree with the reasoning of, and the conclusion reached by, the High Court in regard to the properties covered by the deed dated 4.10.1959.
Accordingly while CA No. 946 (NT) of 1975 brought by the accountable person is dismissed; CA 1251 of 1975 by the revenue succeeds and is allowed and the judgment of the High Court, to the extent it pertains to the properties covered by deed, dated 4.10.1959, is set aside.
In the circumstances, there will be no order as to costs in these appeals.

summary:
A person during his lifetime executed trust deeds, dated 21.9.53 and 4.10.1959 respectively.
Under the Deed dated 21.9.1953 that person as settlor, transferred upon trust to himself as trustees four items of immovable property.
The objects and purposes of the trust broadly stated were the conduct of the daily worship of the deity, carrying out of certain charitable acts and making of provisions for the maintenance of the settlor and some other persons.
The trustee was required after defraying taxes etc.
to accumulate 1/4th of the net income to be set apart for purposes of effecting certain additions and alterations to the properties; to make over another 1/4th of the net income to the shebait for the conduct of the daily pooja; another 1/4th for the charities and the remaining 1/4th for the personal benefit of the settlor during his lifetime and to his heirs thereafter.
Later on the share of the settlor was changed to 5/16.
Under the deed dated 4.10.1959 the settlor transferred upon trust to himself and his son, the appellant in Civil Appeal No. 946 of 1975, as trustees six other properties, almost for the same purposes and kept a fixed share for the benefit of the settlor during his lifetime and thereafter to his heirs.
In the proceedings of assessment to Estate Duty the question arose whether the trust deeds attracted and fell within 270 section 12(1) of the Estate Duty Act.
The Deputy Controller of Estate Duty, the Appellate Controller of Estate Duty in the first appeal and the Income tax Appellate Tribunal, Calcutta, in the second appeal held that the entire subject matter of the deeds must be held, or deemed, to pass on death and the value of the properties should be included in the principal value of the Estate passing on death.
At the instance of the accountable person, a reference was made to the High Court for opinion as to whether the properties comprised in both the trust deeds were dutiable under section 12(1) of the Act.
The High Court held that properties comprised in the deed dated 21.9.1953 were settled property within the meaning of section 2(19) and that section 12(1) was attracted.
In relation to the properties covered by the deed dated 4.10.1959, the High Court held that Section 12(1) was not applicable to them as they were not settled properties.
Feeling aggrieved, both the accountable person and the Deputy Controller of Estate Duty filed these cross appeals.
Dismissing the appeal of the accountable person, allowing that of the Revenue, and answering the question referred to by the High Court for opinion in the affirmative and against the assesee, this Court, ^ HELD: The first contention of the accountable persons that the interest in the property corresponding to the benefit retained by the settlor was not a subject matter of the disposition at all is essentially a matter of construction of the deeds.
There is, no doubt, a discernible difference between a case of settlement of property with reservation of a benefit to the settlor on the one hand and the case where what is settled is only a share or interest or part of the property, excluding the part or the share corresponding to the benefit that the settlor has chosen to retain.
There is, indeed, no transfer at all in the latter case.
The accountable person contends that there is really no transfer of the share corresponding to the benefit reserved in both the cases.
[278F G] In the present case, any possibilities of such an argument are ruled out by the explicit terms of the deeds.
The subject matter of the deeds are not 11/16 share and 1/2 share in the properties respectively.
The whole of the properties are conveyed upon trust.
There is, therefore, no scope for this submission.
[280C D] St. Aubyn vs Attorney General, [1951] 2 All England Reports 496; Controller of Estate Duty, A.P. Hyderabad vs Smt.
Godavari Bai; , at 635 and Controller of Estate Duty, Kerala vs M/s. R.V. Vishwanathan and Ors., ; at 97 and 99, referred to.
271 The second contention of the accountable person that provisions of section 12(1) are not attracted as the properties did not fill the bill as "Settled Properties" within the meaning of Section 2(19) has no substance.
Section 12(1) refers to and deals with a case of property passing under a "settlement" in which the settlor had reserved to himself an interest in such property either expressly or by implication.
Apparently, on its language, the section does not draw upon the incidents and implications of "Settled Property" for the satisfaction of its requirements.
The passing of property under a "settlement" which means "any disposition including a dedication or endowment whereby property is settled" coupled with a reservation of an interest in the property would suffice.
The further incident that the properties covered by the settlement must in addition partake of the character of "Settled property" and accordingly, should stand "limited in trust for any person, natural or juridical, by way of succession" etc.
are not to be held as part of the requirements of section 12(1).
Those incidents of "Settled Property" need not be imported to the ingredients of section 12(1) which would be satisfied if there is a "Settlement" as defined under the second part of section 2(19) and if, there is reservation of an interest by the settlor in addition.
[280D; 281C E] In the instant case, the two deeds clearly answer the description of "Settlement" as defined under Section 2(19) viz. that there is a "disposition including a dedication, whereby property is settled".
Indeed under both the deads, the reservations of the benefit of the income from the trust properties were made in favour of the settlor.
These reservations by themselves, in our opinion, bring the properties within the net of section 12(1).
In addition, the settlor in this case constituted himself during his life time and thereafter constituted his heirs as the shebaits of the two deities.
Indeed where while endowing properties to a deity, the settlor stipulates that he shall during his left time and thereafter his heirs be the shebaits of the deity, the settlor can possibly be said to provide not only for certain duties to be vested in connection with the endowment but also secures a beneficial interest in the property.
[281F H; 282A] Angurbala Mullick vs Debabrata Mullick, at 1132 and Kalipada Chakraborti & Anr.
vs Palani Bala Devi The reservation "interest", so as to attract Section 12(1), must be in the property as such and that mere collateral benefits reserved by the settlor emanating from some other property or some other source, inde 272 pendent of the property so settled, will not attract the section.
The distinction between a case of a benefit arising "collaterally" and a case of the benefit being reserved by "implication" would require to be kept clearly distinguished.
[282H; 283A, C] Controller of Estate Duty vs R. Kanakasabai & Ors., at 257, referred to.
The terms of the two documents satisfy even the extended requirement that for purposes of section 12(1) the settled property must be by way of succession.
[284E] Attorney General vs Owen, [1899] 2 Queen 's Bench Division 253 at 266 and Hamid Hussain vs Controller of Estate Duty, at 315, referred to.
There is no substance in the 3rd contention also of the accountable person that all the properties covered by the two settlements cannot be held to pass under section 12(1) but only the value of the share of the properties corresponding to the benefit reserved must be held to pass.
There are certain fallacies in some of the assumptions basic to this contention.
The quantum of the interest reserved does not determine the extent of the property passing under Section 12(1).
This is not a case where several distinct properties or parcels are settled and a beneficial interest is reserved out of one alone when it might be possible to predicate that all properties comprised in such settlement, which must be held to be a composite deed dealing with several items do not attract section 12(1) but only the parcel out of which an interest is carved out and reserved for the settlor 's benefit.
Under Section 12(1) if the deceased makes a settlement and reserves for himself an interest therein for life or for any period determinable with reference to death, the whole of the property so settled would be deemed to pass.
The interest reserved might be very small indeed; but however small the interest, when by virtue of such a reservation a settlement falls within the purview of section 12, the whole property would be deemed to pass.
[284F H; 285A B] Attorney General vs Earl.
Grey, at 325, referred to.
The expression 'interst ' in section 12(1) is also not used in a restrictive sense.
[285D] Attorney General vs Heywood, and Attorney 273 General vs Farrel, , referred to.


judgement:
Civil Appeal No 485 of 1982.
From the Judgment and order dated 28.3.1980 of the Allahabad High Court in Civil Misc.
Writ No. 2280 of 1979.
M.S. Gupta for the Appellant.
Uma Dutta for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, by special leave, is by the Landlord preferred against the judgment and order dated 28.3.1980 by the High Court of Judicature at Allahabad in Civil Misc.
Writ No. 2280 of 1979 setting aside, at the instance of the First respondent tenant, the concurrent orders of the Courts below granting possession to the appellant.
The first respondent was a tenant of two adjacent shops, under a single lease, obtained from two co owners Shri Jado Ram and Asha Ram who had, respectively 3/8th and 5/8th shares in the property.
Appellant, Mohar Singh became the transferee of the 3/8th share of Jadoram.
Similarly, Asha Ram 's 5/8th interest came to be transferred, through and intermediary alienation, to a certain Gyan Chand.
Pursuant to a decree in a civil suit for partition between Gyan 257 Chand and the appellant, the co ownership came to an end and towards his share appellant was allotted, and became the exclusive owner of, one of the shops.
That is the subject matter of the present proceedings.
Appellant instituted proceedings for eviction against the First respondent under Section 21 of U.P. Act XIII of 1972 before the prescribed authority on the ground of his own bonafide need.
The prescribed authority ordered release of the premises and made an order granting possession.
The appeal preferred by the First respondent before the District Judge, Muzaffarnagar was dismissed.
First respondent then moved the High Court in Writ No. 2280 of 1979.
The findings as to the bona fides and reasonableness of the requirement of the appellant stand concluded by the concurrent findings of the statutory authorities.
Indeed that was not also the ground on which the order of eviction was assailed before the High Court in the writ petition 4.
Before the High Court what was urged by the First respondent, and accepted by the High Court, was the contention that the severance of the reversion and assignment of that part of the reversion in respect of the suit shop in favour of the appellant did not clothe the appellant with the right to seek eviction without the other lessor joining in the action; and that in claiming possession of a part of the subject matter of the original lease the appellant was seeking to split the integrity and unity of the tenancy, which according to the First respondent, was impermissible in law.
The High Court does not appear to have considered the effect of the partition decree between erstwhile co owners and of the appellant, consequently, having become the exclusive owner of one of the shops.
The reasoning that appears to have commended itself to the High Court in setting aside the order made by the Courts below granting possession, is somewhat on these lines: ".
But unless such a situation has been created with the consent of all of them, the effect of transfer of a portion of the accommodation would be that in place of one lessor would be substituted two lessors, even though of defined portions of the accommodation let out to the lessee.
It cannot be denied that one of the two joint lessors cannot institute a suit for ejectment or apply for permission to file 258 such a suit in respect of a portion of the accommodation." . . . ". .
In other words even now as a result of transfer a part of the building under tenancy the splitting up of the tenancy cannot be permitted unless the tenant has agreed to it.
On this view of the matter, the impugned orders are liable to be quashed.
It is trite proposition that a land lord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant.
But Section 109 of the provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land.
This is the true effect of the words 'shall possess all the rights . of the lessor as to the property or part transferred . ' occurring in Section 109 of the T.P. Act.
There is no need for a consensual attornment.
The attornment is brought about by operation of law.
The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of the reversion.
There is no need for the consent of the tenant for the severance of the reversion and the assignment of the part so severed.
This proposition is too well settled to require any further elucidation or reiteration.
Suffice it to refer to the succinct statement of the law by Wallis, CJ in Kannyan vs Alikutty, AIR 1920 Madras 838 (FB) (at 840). ". .
A lessor cannot give a tenant notice to quit a part of the holding only and then sue to eject him from such part only, as pointed out quite recently by the Privy Council in Harihar Banerji vs Ramasashi Roy, AIR 1918 PC 102.
Consequently, if the suit is brought by the original lessor the answer to the question referred to us must be in the negative because such a suit does not lie at all.
Other considerations, however, arise, where, as in the present case, the original lessor has parted in whole or in part with the reversion in part of the demised premises.
Under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from 259 the land covered by the assignment.
Shri Uma Dutta, learned counsel for the respondent tenant, however, relied on the pronouncement of this Court in Badri Narain Jha and Ors.
vs Rameshwar Dayal Singh and Ors., ; (159) to support his contention that severance and assignment of a part of the reversion would not affect the integrity of the lease.
We are afraid, reliance on this case is somewhat misplaced.
This was a converse case where this Court considered the effect of splitting up of the interest of the lessees, inter se.
In that context, Mahajan, J said: ".
An inter se partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety . . " "There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land.
In law, therefore, an inter se partition of the makarrari interest could not effect the integrity of the lease . " This is an altogether different proposition.
The next contention of Shri Uma Datta is that, at all events, what flows from a 'transfer ' undr section 5 read with Section 109 of T.P. Act cannot be predicated of a partition as partition is no 'transfer '.
It is true that a partition is not actually a transfer of property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the other co sharer or co sharers.
However, some decisions of the High Courts tend to the view that even a case of partition is covered by Section 109 and that, in any event, even if the section does not in terms apply the principle of the section is applicable as embodying a rule of justice, equity and good conscience.
We need not go into this question in this case.
Suffice it to say that the same High Court itself, from whose decision this present appeal arises, in Ram Chandra Singh vs Ram Saran & Ors., AIR 1978 Allahabad 173 has taken the view that section 109 of T.P. Act is attracted to the case of partition also.
That was a decision which the 260 learned judge in the present case should have considered himself bound by, unless there was a pronouncement of a larger bench to the contrary or unless the learned judge himself differed from the earlier view in which event the matter had to go before a Division Bench.
The correctness of the decision in Ram Chandra Singh 's case was not assailed before us and, therefore, we do not feel called upon to pronounce on it.
We should, we think apply the same rule to this case.
Several other High Courts have also taken this view, though, however, some decisions have been content to rest the conclusion on the general principle underlying Section 109, T.P. Act, as a rule of justice, equity and good conscience.
In the result, this appeal is allowed, the order of the High Court set aside and that of the III Additional District Judge, Mazaffarnagar in Rent Control Appeal No. 48 of 1978 restored.
In the circumstances of this case, there will be no order as to costs.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The first respondent was a tenant of two adjacent shops, under a single lease, obtained from two co owners.
The co owners transferred their respective shares separately.
Pursuant to partition between the transferees, the appellant became the exclusive owner of one of the shops.
The appellant instituted proceedings and obtained an order for the eviction of the first respondent from his shop on the ground of own bonafide need.
The District Judge upheld that order.
The High Court, however, in a writ petition accepted the contention of the first respondent that in claiming possession of a part of the subject matter of the original lease the appellant as seeking to split the integrity and unity of the tenancy, which was impermissible in law.
The High Court accordingly set aside the concurrent orders of the courts below.
Allowing the appeal, it was ^ HELD: (1) A landlord could not split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant.
But section 109 of the provided a statutory exception of this rule.
By virtue of this exception, the limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, did not visit the assignee of the part of the reversion.
There was no need for the consent of the tenant for the severance of the reversion and the 256 assignment of the part so severed.
[258C E] (2) Though there was difference of opinion among the various High Courts on the point, the learned Judge in this case should have considered himself bound by an earlier decision of the same High Court in Ram Chandra Singh case which had taken the view that section 109 of the T.P. Act was attracted to the case of partition also.
[259G H] (3) Without pronouncing on the correctness of the decision in Ram Chandra Singh 's case, this Court applied the same rule; and reversed the High Court on the point and restored the order of eviction.
[260B] Kannyan vs Alikutty, AIR 1920 Mad 838 (FB): Badri Narain Jha and Ors.
vs Rameshwar Dayal & Ors., ; and Ram Chandra Singh vs Ram Saran & Ors., AIR 1978 All. 173, referred to.


judgement:
N: Criminal Appeal No. 317 of 1988.
From the Judgment and Order dated 23.1.1987 of the Madras High Court in Criminal Appeal No. 408 of 1986 and R.T. 6 of 1986.
U.R. Lalit, V. Krishnamurthy and V. Balachandran for the Appellant.
A.V. Rangam for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
The appellant was convicted by the trial court for double murder of a woman, Jayasambal by name and her son Vijay Anand, and was sentenced to death.
He was further convicted under section 307, I.P.C. for attempting to kill Vijay Anand 's sister Kavitha Priyadarsini and for house trespass in order to commit the aforesaid offences, and was sentenced to life imprisonment under each of the two counts.
His appeal before the Madras High Court was dismissed and the sentence of death confirmed.
The present Special Leave Petition was filed against this judgment.
At the preliminary hearing we were satisfied that the appel 224 lant was rightly convicted as mentioned earlier.
We, however, directed notice to be issued on the question of sentence.
Accordingly, limited special leave is granted.
According to the case of the prosecution, Dr. Manickasamy (P.W.1), the husband of the deceased Jayasambal and father of deceased Vijay Anand, was a doctor working in the Government Hospital at Sadras and the appellant as a Leprosy Inspector under him.
The doctor had taken a second wife whom he was keeping in another house with their 3 children.
The appellant developed close association with the doctor 's family and became intimate with Jayasambal.
The daughter Kavitha Priyadarsini (P.W.2), one day in 1984, found to her shock, her mother Jayasambal and the appellant in a compromising position, and raised a stiff protest with her mother.
Jayasambal attempted to justify her romance on the ground that the doctor P.W.1 was also having two women in his life.
When Kavitha threatened that she would report the matter to her father, she (Jayasambal) relented and agreed to terminate the illicit relationship on which Kavitha promised silence.
Thus forced by her daughter, Jayasambal attempted to avoid the company of the appellant and to repel his advances.
In the meantime the family had changed its residence and the younger sister of Jayasambal joined them and started living with them.
She was examined in the case as P.W.3.
On 20.7.1985 the appellant went to a late night cinema show with his friend P.W.5.
The film contained murder scenes of four women.
When the appellant came out of the cinema hall after midnight he told his friend that he would take revenge for the betrayal by a lady.
He did not give any detail.
P.W.5 stated at the trial that after dropping him at the dispensary, where he lived, the appellant left by a bicycle; and he learnt the next morning about the death of Jayasambal.
According to the further prosecution story the appellant knocked the door of P.W.1 soon thereafter.
The doctor came out of his house and the appellant suddenly rushed into his bed room, locked the door from inside and attacked Jayasambal with a knife.
The boy Vijay Anand aged about 12 years, got up and attempted to intervene and was killed.
His elder sister Kavitha (P.W.2) also became a victim and suffered grievous injury.
The doctor, P.W.1, and Jayasambal 's younger sister (P.W.3) raised shouts which attracted P.W.16, a Police Inspector living in the neighbourhood.
The Police Inspector saw the accused through the window with a knife in his hand and ordered him to stop and to open the door.
The appellant obeyed.
225 6.
Both the trial court and the High Court, on appeal, closely examined the evidence and came to the conclusion that the prosecution story was correct.
A plea of insanity under section 84, I.P.C. taken on behalf of the accused was rejected.
We have examined the evidence and the circumstances and are in agreement with the view of the High Court.
However, the question is whether the courts below were right in imposing death penalty on the appellant or whether the appropriate sentence would be imprisonment for life.
Prima facie the case appears to be a very serious one where two persons were killed and a third one seriously injured.
The death of a 12 year boy trying to save his mother and the serious injury to his elder sister leaves one shocked.
Mr. Lalit, the learned counsel for the appellant contended that although the appellant was not in such a mental state so as to attract section 84, I.P.C., he was certainly so agitated on account of circumstances beyond his control that he should be spared from the extreme penalty of death.
He relied upon the decision in Srirangan vs State of Tamil Nadu, wherein a lenient view was taken in favour of the appellant, a young toddy tapper who while returning after his work "tense in state", was provoked and "went into tantrums and inflicted triple killings.
We have closely examined the circumstances in which the tragic event took place.
The deceased Jayasambal at the time of murder was about 35 years old with a teen aged daughter and a 12 year old son, and the appellant was in his late 20s.
She was united with the doctor through love marriage, but the husband later took another wife and got 3 children from her.
The appellant was employed in the hospital where the doctor P.W.1 was posted.
In this background the unfortunate illicit relationship developed between the deceased and the appellant when the latter was in his mid 20s.
The deceased was an elderly lady with two children who took a defiant attitude, defending her conduct when she was first confronted by her own daughter, which suggests that the unfortunate relationship had developed with her encouragement.
When suddenly spurned by his partner, the appellant must have experienced the disappointment of a discarded lover.
We do not suggest that the erring wife should not have corrected herself nor can the persistence of the appellant in the situation be appreciated, but we are trying to analyse his psychology.
His mental agitation was further fuelled by the movie, showing murder after murder.
The vicious effect of films picturising violence in detail on impressionable minds has been subject of serious concern for some time now, but unfortunately no 226 effective step has been taken so far to curb the growing tendency of a section of the film industry to cash on human weakness.
And when this upsets a youngman, already vulnerably disturbed, the society cannot be completely absolved from sharing the responsibility of the resulting tragedy.
Proceeding further with the facts in the present case, we find that when commanded by P.W. 16, the appellant stopped immediately, as a result of which the life of Kavitha was saved, opened the door, came out of the room and did not attempt to escape.
Considering the above circumstances appearing from the prosecution evidence, we are of the view that the sentence of death passed against the appellant under section 302, Indian Penal Code, should be converted to imprisonment for life.
Let that be done and let all the sentences of imprisonment run concurrently.
N.P.V. Appeal allowed.

summary:
The prosecution case was: The appellant, who was working under P.W.1, developed intimacy with P.W.1 's wife.
However, on being found out by her daughter, P.W.2, the wife was forced to terminate this relationship.
Then, on 20.7.1985, the appellant saw a late night film containing murder scenes of four women and told his friend, P.W.5, that he would take revenge for the betrayal by a lady.
Thereafter he went to the house of P.W.1 and attacked the wife with knife, and killed her son when he intervened.
He also caused grievous injury to the daughter.
The appellant was convicted by the trial court under section 302 IPC for double murder of the woman and her son and also under section 307 IPC for attempting to kill her daughter and for house trespass in order to commit the aforesaid offences, and sentenced to death and life imprisonment respectively.
The High Court dismissed the appeal, and confirmed the death sentence.
In the appeal by special leave, it was contended that although the appellant was not in such a mental state as to attract section 84 of the IPC, he was certainly so agitated on account of the circumstances beyond his control that he should be spared from the extreme penalty of death.
Allowing the appeal, 223 ^ HELD: The deceased was an elderly lady with two children who took a defiant attitude, defending her conduct when she was first confronted by her own daughter, which suggests that the unfortunate relationship between her and the appellant, in his mid 20s, had developed with her encouragement.
When suddenly spurned by his partner, the appellant must have experienced the disappointment of a discarded lover.
His mental agitation was further fuelled by the movie, showing murder after murder.
And when this upsets a youngman, already vulnerably disturbed, the society cannot be completely absolved of sharing the responsibility for the tragedy resulting from the vicious effect of films picturising violence.
[225F H; 226A B] Considering all these circumstances, and having regard to the fact that when commanded by P.W.16, the appellant stopped immediately, thereby resulting in the life of the daughter being saved, and that he did not attempt to escape, the sentence of death passed against the appellant under section 302 Indian Penal Code is converted to imprisonment for life.
[226B C]


judgement:
IGINAL JURISDICTION: Criminal Appeal No. 319 of 1988 From the Judgment and Order dated 21.11.1987 of the Gujarat High Court in Special Criminal Application No. 732 of 1987.
AND Writ Petition (Criminal) No. 906 of 1987.
M.C. Kapadia, S.S. Khanduja and Y.P. Dhingra for the Appellant/Petitioner.
G.A. Shah and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave brought from the judgment and order of the Gujarat High Court dated 21st November, 1987 and the connected petition under article 32 of the Constitution are directed against an order passed by the District Magistrate, Panchmahals, Godhra dated 28th May, 1987 for the detention of the appellant under sub section
(2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 on being satisfied that it was necessary to do so, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
It is not an undisputed fact that the appellant is engaged as a commission agent or broker in the rather lucrative but illicit business of liquor traffic at Godhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, beer etc.
from wine merchants of Vanswada in the State of Rajasthan.
But then by engaging himself in such activities he falls within the description of a 'bootlegger ' as defined in section 2(b) and therefore comes within the ambit of sub section
(1) of section 3 of the Act by reason of the legal fiction contained in sub section
(4) thereof.
Put very briefly, the essential facts are these.
On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No. GRY 3832, on the night between 29/30th December, 1986, the Gujarat police put up a road block on the bridge near Machan River where on a sign given it failed to stop.
After a long chase, the police jeep was able to intercept the 292 truck at Limdi.
Both the driver Ahmed Saiyad Abdul Majid Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said that the truck was empty.
However, on a search it was found to be laden with 77 sealed cases containing 2040 bottles of different brands of scotch whisky, beer etc.
and it was evident from the statements of the driver and the cleaner who were arrested, that the appellant was the person who had purchased the liquor from wine merchants of Vanswada.
On 4th January, 1987 the statements of the witnesses were recorded.
Apparently, the appellant absconded and he could not be traced till 2nd February, 1987 when he was arrested but later released on bail.
In the meanwhile, he moved the Sessions Judge, Panchmahals for anticipatory bail on 21st January, 1987 but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest.
The appellant is being prosecuted for various offences under the Bombay Prohibition Act, 1949 as applicable to the State of Gujarat, in Criminal Case No. 154/86.
On 28th May, 1987 i.e. after a lapse of five months the District Magistrate, Panchmahals, Godhra passed the order of detention along with the grounds therefore which was served on the appellant on the 30th when he was taken into custody.
The immediate and proximate cause for the detention was that on 20/30th December, 1986 he transported in bulk foreign liquor from liquor merchants of Vanswada in the State of Rajasthan intended and meant for delivery to persons indulged in anti social activities by doing illict business of foreign liquor in the State of Gujarat.
Incidentally, the grounds furnish particulars of two other criminal cases, namely, (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor recovered and seized from his residential house on 21st July, 1982, but the case ended in an acquittal as the prosecution case witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house on 30th May, 1986 which case was still pending.
It was said that persons like the appellant bringing foreign liquor from other States illegally without a permit on a brokerage and storing the same in their permises are not easily detected and there was no other method of preventing such persons from engaging in such anti social activities except by detention under section 3(2) of the Act.
In the writ petition before the High Court the appellant assailed the impugned order of detention mainly on two grounds, namely: (i) The failure of the detaining authority to record his subjective satisfaction as required under sub section
(2) of section 3 that the importation of foreign liquor by the appellant from Vansawada across the border was likely to affect public health of the citizens of Gujarat and therefore it was 293 necessary to detain him with a view to preventing him from acting in any manner prejudicial to public order, renders the order of detention bad and invalid.
(ii) There was no sufficient material on record on which such subjective satisfaction of the detaining authority could be reached.
Neither of the two contentions prevailed with the High Court and it accordingly declined to interfere.
At the time when the judgment was to be delivered by the High Court, learned counsel appearing for the appellant sought permission to raise an additional point and he was permitted to do so.
It was as to whether the detention of the detenu at Sabarmati Central Prison, which was a place other than Godhra where he ordinarily resides, was tantamount to a breach of the mandate of article 21 of the Constitution as his detention at a far off place was not consistent with human dignity and civilized normes of behaviour.
The additional point so raised also did not find favour with the High Court.
The appeal by special leave is directed against this judgment.
Learned counsel for the appellant has however not preferred to rais these questions over again.
In the connected petition under article 32 learned counsel for the appellant has, in substance, put forth the following contentions, namely: (1) There is no explanation forthcoming for the admitted delay of five months in making the impugned order of detention and such inordinate unexplained delay by itself was sufficient to vitiate the order.
(2) The impugned order of detention was bad in law inasmuch as there was non application of mind on the part of the detaining authority.
There was nothing to show that there was awareness of the fact that the appellant had applied for grant of anticipatory bail nor was there anything to show that the detaining authority was satisfied about the compelling necessity to make an order for detention which, it is said, was punitive in character.
It is said that there was no occasion to commit the appellant to prison while he was on bail in a criminal case facing charges under the Bombay Prohibition Act, 1949 merely on the suspicion of being a bootlegger.
(3) The impugned order of detention was ultra vires the District Magistrate and void ab initio as it displayed lack of certainty and precision on the part of the detaining authority as to the purpose of detention.
There was clubbing of purposes as it mentioned that such detention was necessary (i) in the interests of the nation with a view to stop the anti national activities, (ii) for ensuring of public peace, (iii) for maintenance of public health, and (iv) in the interest of the State, all rolled up into one.
(4) There was delay in the disposal of the representation made by the appellant 294 to the State Government which renders his continued detention invalid and constitutionally impermissible.
We shall deal with the contentions in seriatim.
Point No. (1): It has always been the view of this Court that detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law.
The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens.
When the life and liberty of citizen was involved, it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed.
When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
These procedural safeguards are ingrained in our system of judicial interpretation.
The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court.
Thus, this Court in Khudiram Das vs State of West Bengal, ; speaking through Bhagwati, J. observed: "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security." As observed by this Court in Narendra Purshotam Umrao vs B.B. Gujral; , when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance 295 of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention. ". it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
" Nevertheless, the community has a vital interest in the proper enforcement of its laws particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering or with persons engaged in anti national activities which threaten the very existence of the unity and integrity of the Union or with persons engaged in anti social activities seeking to create public disorder in the worsening law and order situation, as unfortunately is the case in some of the States today, by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty.
The Court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of article 22(5) of the Constitution.
There is an inexorable connection between the obligation on the part of the detaining authority to furnish the 'grounds ' and the right given to the detenu to have an 'earliest opportunity ' to make the representation.
Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention.
The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu.
The test to be applied in respect of the contents of the grounds for the two purposes are quite different.
For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earlier opportunity which must, of course, be a real and effective opportunity.
The Court may examine the 'grounds ' specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation 296 and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc.
and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order.
In the enforcement of a law relating to preventive detention like the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activity complained of under section 3(1) of the Act and the making of an order of detention.
When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy.
Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents.
Effective administration and realisation of the purpose of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts.
Sometimes such investigation has to be carried on for months together due to the magnitude of the operations.
Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under section 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc.
The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee.
For ought we know, the Screening Committee may meet once or twice a month.
If the Screening Committee approves of the proposal, it would place the same before the detaining authority.
Being conscious that the requirements of article 22(5) would not be satisfied unless the 'basic facts and materials ' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would neces 297 sarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.
Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of article 22(5) of the Constitution.
It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible.
Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached.
Taking of such a view would not be warrented unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the impugned order of detention.
The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl.
W. No. 410/86 dated 2.2.1987, Bhupinder Singh vs Union of India & Ors., , Anwar Esmail Aibani vs Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986, Surinder pal Singh vs M.L. Wadhawan & Ors., Crl.
W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl.
W. No. 43/84 dated 16.4.1984 and other cases taking the same view do not lay down good law and are accordingly overruled.
In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 29/30th December, 1986.
The District Magistrate in the counter affidavit has averred that it was revealed from the statements of the witnesses recorded on 4th January, 1987 that the appellant was the person actually involved.
Apprehending his arrest the appellant applied for anticipatory bail on 21st January, 1987.
298 It appears that on the same day the appellant apears to have made a statement that there was no proposal at that stage to arrest the appellant.
However, later it was discovered that there was no trace of the appellant.
He was arrested on 2nd February, 1987 and on the same day he made a statement admitting these facts.
Meanwhile, the proposal to detain the appellant was placed before the District magistrate.
It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under section 3(2) of the Act and that accordingly on 28th May, 1987 he passed the order of detention.
The appellant was taken into custody on 30th May, 1987.
He had forwarded the report to the State Government on the 28th and the Government accorded its approval on the 31st.
Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention.
There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action.
These are admirably dealt with in Durga Das Basu 's Shorter Constitution of India, 8th edn.
at p. 154.
We will only notice to a few salient decisions.
In Olia Mallick vs State of West Bengal, it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order.
Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity.
In Golam Hussain @ Gama vs The Commissioner of Police, Calcutta & Ors., ; , it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention.
But no 'mechanical test by counting the months of the interval ' was sound.
It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation.
The Court has to investigate whether the casual connection has 299 been broken in the circumstances of each case.
In Odut Ali Miah vs State of West Bengal, where the decision of the detaining authority was reached after about five months, Krishna Iyer, J. repelled the contention based on the ground of delay as a mere 'weed of straw ' and it was held that the 'time lag ' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonable person could possibly have arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents.
It follows that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.
In Vijay Narain Singh vs State of Bihar, [1964] 3 SCC 14, one of us, Sen, J. observed: "On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority.
It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order.
" See also: Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; and Hemlata kantilal Shah vs State of Maharashtra, ; Point No. (2): Quite recently, we had occasion to deal with this aspect in Bal Chand Bansal vs Union of India & Ors., JT In repelling a contention raised on the dictum in Ramesh Yadav vs District Magistrate, Etah, , one of us (Sharma, J.) drew attention to the observations of Mukharji, J. in Suraj Pal Sahu vs State of Maharashtra, ; that the prejudicial activities of the person detained were 'so interlinked and continuous in character and are of such nature ' that they fully justified the detention order.
Here the grounds of detention clearly advert to two earlier incidents, one of 21st July, 1982 for which the detenu was being prosecuted in Criminal Case No. 303/82 relating to the recovery and seizure of 142 bottles of foreign liquor from his residential house which ended in an acquittal because the prosecution witnesses turned hostile, and the other of 30th May, 1986 for which Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house was 300 then still pending, and go on to recite that the launching of the prosecution had no effect inasmuch as he had not stopped his activities and was continuing the importation of foreign liquor from across the border.
The earlier two incidents are not really the grounds for detention but they along with the transaction in question of importation of foreign liquor in bulk show that his activities in this transaction afforded sufficient ground for the prognosis that he would indulge in such anti social activities again, if not detained.
The District Magistrate in his counter affidavit has stated that he was aware of the fact that the detenu had on 21st January, 1987 applied for anticipatory bail but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest.
It however appears that he was arrested on 2nd February, 1987 and on his own made a statement admitting the facts.
Thereafter, he seems to have disappeared from Godhra.
In the circumstances, it cannot be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did.
There is a mention in the grounds of the two criminal cases pending against the detenu and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and therefore there was compelling necessity to detain him.
Point No. (3): The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' at first blush appears to be attractive but on deeper reflection seems to be of little or no consequence.
The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order.
It was not seriously disputed before us that the prejudicial activities carried on by the appellant answer the description of a 'bootlegger ' as defined in section 2(b) and therefore he comes within the purview of sub section
(1) of section 3 of the Act, by reason of sub section
(4) thereof.
Sub section
(4) of section 3 with the Explanation appended thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order ' and reads: "(4) For the purpose of this section, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order ' when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.
301 Explanation: For the purpose of this sub section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any person referred to in this sub section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public of any section thereof or a grave or widespread danger to life, property or public health." The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellant that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained.
In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction.
They go on to state that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and therefore it was necessary to detain him under section 3(2) of the Act, and recite: "In order to safeguard the health of the people of Gujarat, for public peace and in the interest of the nation, with a view to stop such anti national activities . . for the purpose of public order and public peace and in the interest of the State . ." In our opinion, these words added by way of superscription were wholly unnecessary.
They were set out by the District Magistrate Presumably because of total prohibition in the State.
In future, it would be better for the detaining authority acting under sections 3(1) and 3(2) of the Act, to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar.
Point No. (4): The contention that there was unexplained delay in disposal of the representation made by the appellant to the State Government appears to be wholly misconceived.
Admittedly, the appellant made his representations to the State Government as well as to the Advisory Board on 8th June, 1987.
The State Government acted with promptitude and after due consideration rejected the same on 12th June, 1987.
There was no delay much less inordinate delay in consideration of the representation.
The result therefore is that the appeal as well as the writ petition fail and are dismissed.
S.L. Appeal & Petition dismissed.

summary:
This appeal by special leave against the judgment of the High Court in writ petition, and the writ petition filed in this Court were directed against an order of detention passed by the District Magistrate against the appellant under sub section
(2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The appellant was a comission agent or broker engaged in illicit business of liquor traffic at Godhara in the State of Gujarat where there is total prohibition by importing liquor from Vanswada in Rajasthan.
On prior information that the appellant was about to import liquor in a truck on the night between 29th/30th December, 1986, the Gujarat police intercepted the truck and found it laden with cases containing bottles of whisky and beer, etc.
It was evident from the statements of the driver and the cleaner that the appellant had purchased the liquor from Vanswada.
The appellant could not be traced till 2nd February, 1987, when he was arrested but later released on bail.
On 28th May, 1987, the District Magistrate, Godhara, passed an order of detention and served it alongwith the grounds of detention on the appellant on the 30th when he was taken into custody.
The immediate and proximate cause for the detention was that on 29th/30th December, 1986, he had transported in bulk foreign liquor from Vanswada in Rajasthan for delivery in the State of Gujarat and indulged in anti social activities by doing illicit business of foreign liquor.
The grounds furnished particulars of two other criminal cases, namely (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor seized from his residence on 21st July, 1982, which had ended in acquittal as the prosecution witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to seizure of 24 bottles of foreign liquor from his house on 30th May, 1986, which was still pending.
288 The appellant filed the writ petition in the High Court assailing the order of detention.
The High Court declined to interfere.
The appellant then filed in this Court the appeal by special leave against the decision of the High Court and the writ petition, against the order of detention.
Dismissing the appeal and the writ petition, the Court ^ HELD: When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds of detention and afford him the earliest opportunity of making a representation against the order.
The power of preventive detention underany law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court.
The Court must be circumspect in striking down an order of detention where it meets with the requirements of article 22(5) of the Constitution.
[294C E; 295D E] Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention.
The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu.
There is apt to be some delay between the prejudicial activity complained of in section 3(1) of the Act and the making of an order of detention.
When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determining the identity of the persons engaged in these operations.
Their statements have to be recorded; their books of accounts and other related documents have to be examined.
Sometimes such investigation has to be carried on for months together.
The Directorate has to consider whether there is necessity in the public interest to direct the detention of a person under section 3(1) of the Act with a view to preventing him from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or from engaging in smuggling of goods, etc.
The proposal has to be cleared at the highest quarter and then placed before a Screening Committee.
If the Screening Committee approves, the proposal is placed before the detaining authority.
The detaining authority would necessarily insist upon sufficiency of grounds which 289 would justify the preventively detaining of the person.
Viewed from this prospective, the Court emphasised for the guidance of the High Courts that a distinction must be drawn between delay in making an order of detention under a law relating to preventive detention and the delay in complying with the procedural safeguards of article 22(5) of the Constitution.
The rule as to unexplained delay in taking action is not inflexible.
The Courts should not merely on account of delay in making an order of detention assume that the delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached.
Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the order of detention.
The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl.
W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Aibani vs Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan Delhi Administration, Crl.
W. No. 43/84 dated 16.4.1984 and Cases taking the same view did not lay down good law and were overruled.
In this case, the appellant was arrested on 2nd February, 1987.
The order of detention of the appellant was passed on 28th May, 1987.
Though there was no explanation for the delay between 2nd February and 28th May, 1987, it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention.
[295F G; 296B H; 297A G; 298C D] It could not be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did.
There was a mention in the grounds of the two criminal cases against the detenu Criminal Case No. 303/82 and Criminal Case No. 150/86 and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and, therefore, there was compelling necessity to detain him.
[300D] The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' was of little or no consequence.
The purpose of detention is to prevent the appellant from acting in any manner prejudicial to the maintenance of public order.
It was disputed 290 that the prejudicial activities of the appellant answered the description of a 'bootlegger ' as defined in section 2(b) and, therefore, he came within the purview of sub section
(1) of section 3 of the Act by reason of sub section
(4) thereof.
Sub section
(4) of section 3 with the explanation thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order '.
The district magistrate in passing the impugned order recorded his subjective satisfaction that with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order that he be detained.
In the accompanying grounds of detention this was the basis for the formation of his subjective satisfaction, and it was stated therein that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and, therefore, it was necessary to detain him under section 3(2) of the Act.
[300E G; 301C D] The contention that there was unexpected delay in the disposal of the representation made by the appellant to the State Government was wholly misconceived.
The representations were made by the appellant on 8th June, 1987.
The State Government acted with promptitude and rejected them on 12th June, 1987.
There was no delay.
[301F G] The appeal and the writ petition failed.
Khudiram Das vs State of West Bengal, ; ; Narendra Purshottam Umrao vs B.B. Gujral, ; ; Olia Mallick vs State of West Bengal, ; Golam Hussain @ Gama vs Commissioner of Police, Calcutta & Ors., ; ; Odut Ali Miah vs State of West Bengal, ; Vijay Narain Singh vs State of Bihar, [1954] 3 SCC 14; Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; ; Hemlata Kantilal Shah vs State of Maharashtra, ; ; Bal Chand Bansal vs Union of India & Ors., J.T. ; Ramesh Yadav vs District magistrate, Etah, and Suraj Pal Sahu vs State of Maharashtra, ; , referred to.
Anil Kumar Bhasin vs Union of India & Ors., Crl.
W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Alibani vs Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan & Ors., Crl.
W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl.
W. No. 43/84 dated 16.4.1984, overruled.