Ram Chandra Paul vs District Magistrate

Anil K. Sen, J.—In this application u/s 491 of the Code of Criminal Procedure the Petitioner is disputing the validity of the detention of the detenu Kali Mohan alias Sambhu Pal who has been put to preventive detention under an order dated May 22, 1972, passed by the District Magistrate, Nadia, in exercise of his powers u/s 3(1) read with Section 3(2) of the Maintenance of Internal Security Act, 1971. The object of detention is to prevent the detenu from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The detention rests on a single ground which recites as follows:

During watch on your shop on 20.5.1972 between .11.45 hours and 12.15 hours it was noticed that you kept in readiness in your shop 7 purias of mill-made shari and 18 purias of dhoti for illegal export to Bangladesh and men were ready to take them away. You thus made an attempt to export cloth which is essential to the community. Thus you acted in a manner prejudicial to the maintenance of supplies and services to the , community.

In our reading the ground is quite relevant to the object of detention as it clearly indicates that the allegation against the detenu is that he was found making attempt to wrongfully divert essential supplies outside the country to the prejudice of the people at large.

Mr. Acharyya appearing in support of this Ruler has, however, raised two points. In the first place, he has contended that unusually the three documents, namely, the order of detention, the custody order and the ground have been signed by the District Magistrate in a peculiar manner by setting out the first name which is equivalent to the christen name in a man''s signature. To be specific he has signed his order by merely writing ''Dipak'' though there is no doubt that his name is Dipak Ghosh. According to Mr. Acharyya this is not a valid signature of an official document and no detention can rest on an order so signed.

4 Secondly, it has been contended by Mr. Acharyya that the order of detention was passed mechanically without application of mind to the grounds which were subsequently drawn up with an antidote and, as such, the order is not bone fide. The first point raised by Mr. Acharyya has put the Court to some trouble and all this is due to a fanciful act on the part of the District Magistrate of sighing these official documents in a peculiar manner usually never seen. Mr. Acharyya has drawn our attention to the dictionary meaning of the word ''signature'' as in Wharton''s Law Lexicon (14th ed., p. 932). Here it is defined as follows:

Signature is a sign or mark impressed upon anything, a stamp, a mark; the name of a person written by himself either in full or by initials as regards his christen name or names, and in full as regards his surname, or by initials only.

Strong emphasis has been laid by Mr. Acharyya on the requirements that in order to constitute signature it must either be the full christen name plus full surname or initial of the christen name with the full surname. We have, however, looked into the matter more in details and we find that there is reference to the case of Morion v. Copeland 16 CB. 535 (June 4, 1855) where it is laid down that--

Signature does not necessarily mean writing a person''s christen surname but any-mark which identifies it as the act of the party.

The Editor''s note, however, specifies that in such case it should be proved or admitted to be genuine and further that should be the accustomed mode of signature of the party. This being the position the mere fact that the District Magistrate had signed the order by setting out his first name without his surname will not legally invalidate the document, as in our opinion, if that is the ''accustomed mode of his signature, it can be accepted to be legally executed document. Of course, Mr. Acharyya has rightly pointed out that there is no pleading before us that such is his usual mode of signature and normally a signature of this kind appears to this Court to be unusual. However, in the affidavit before us the District Magistrate has acknowledged the order to have been signed by him and we have no reason to discard the affidavit sworn by him. In this view, we overrule the first point raised by Mr. Acharyya that the unusual signature of the District Magistrate invalidates the document: Although we overrule this point we cannot but observe that it is difficult to follow the fancy of a District Magistrate that he should sign official orders in such an unusual manner.

In our opinion, however, there is some substance in the second point raised by Mr. Acharyya, at least this Court entertains a reasonable doubt as to the bona fides of the satisfaction on which the detention has been" made. It" is seen that both the order of detention and the custody order bear the date as on May 22, 1972, and it bears the signature of the Distract Magistrate dated May 22, 1972. Strangely, however, the grounds that have been served on the detenu bear the date on May 26, 1972, but the signature of the District Magistrate is on May 22, 1972. There is no dispute that the grounds were served on the detenu on May 27, 1972. Both under the statute and the Constitution it is true that it is open to the District Magistrate to arrive at a necessary satisfaction on consideration of relevant facts and pass an order without formulating the grounds and serving them provided the grounds are so drawn up and served within five days from the date of detention. Therefore, if it had been the case that the District Magistrate was otherwise satisfied. on relevant grounds on May 22, 1972, and passed the order but had drawn up the grounds on May 26, 1972, and served the same within five days, there would have been no invalidity in the order. Similarly,, if the order and the grounds had been drawn up simultaneously but for some reason or other, the grounds could not have been served except on May 26, 1972, that would not have invalidated the detention in any manner. But, in the present case, there is an apparent inconsistency in, tie ground. The ground bears the date May 26, 1972, but bears a signature on May 22, 1972. The District Magistrate in his affidavit before this Court in para. 3(i)(b) has stated that--

my Order No. 1303 C dated 26.5.1972 signed by me on 22.5.1972 containing the grounds, both in English and Bengali, upon which the detention was made was served upon the detenu on 27.5,1972. It defeats our intelligence how an order of the District Magistrate dated May 26, 1972, could be signed by him on May 22, 1972, unless it was antedated. Mr. Poddar appearing for the State wanted to explain the position by saying that the ground was really drawn up on May 22, 1972, but it had not'' gone out until May 26, 1972, which was the date set out on the top of the ground. The ground, however, does not indicate the date May 26v, 1972, to be the date of issue and not the date of making of the ground. On the other handy the District Magistrate''s own affidavit recites the contrary, namely, the ground which is described by him as ''my order was made on 26.5.1972'' though he claims he signed it on May 22, 1972. This necessarily raises a doubt in the mind of the Court that the ground in any form either in the drawn up form as served on the detenu or in any other form was at all before the District Magistrate on the date when he passed the order. The Court entertains a genuine doubt that the District Magistrate might have issued the order in a mechanical process on May 22, 1972, which might have been subsequently supported by drawing up of the ground on May 26, 1972. Such a doubt when arises in the mind of the Court it must ensure to the benefit of the detenu as the subject-matter under consideration before us is the detention of a man without trial and on the basis of mere executive order on the part of the District Magistrate. This being the position we must hold that ''the detention in the present case is not based on any bona fide satisfaction.

This application, accordingly, succeeds and the Rule is made absolute. We direct that the detenu be not at liberty forthwith.

N.C. Mukherji, J.

I agree.