civil appellate jurisdiction civil appeal number 157 of 1967.
appeal from the judgment and decree dated january 7 1960 of
the patna high companyrt in misc. judicial case number 693 of
1958.

k. daphtary attorney-general d. p. singh r. k. garg

c. agarawala k. m. k. nair and s. p. singh for the
appellants. sarjoo prasad and d. goburdhun for the
respondent. the judgment of the companyrt was delivered by
bachawat j.-this appeal is directed against an order allow-
ing a writ petition under art. 226 of the companystitution. maharaja pratap singh bahadur was the proprietor of the
estates companylectively knumbern as the gidhaur estate in monghyr
district. on the publication of a numberification under s. 3
of the bihar land reforms act 1950  bihar act xxx of 1950
on july 24 1953 the gidhaur estate and the interests of the
maharaja therein vested in the state of bihar. the maharaja
was receiving a permanent malikana allowance of rs. 5743/14/6 annually in two equal six monthly instalments as
shown in annexure a to the writ application. the
registers and rolls of the recipients of the malikana
maintained by the companylector of the district since a long
time past show that the successive proprietors of the
gidhaur estate were receiving the malikana for a long time
past. the state of bihar stopped payment of the malikana
allowance from april 1 1958 on the ground that the
proprietary interests of the maharaja in the gidhaur estate
vested in the state and companysequently his right to the
malikana was extinguished. the maharaja alleged in the writ petition that the
permanent malikana was payable irrespective of his
proprietary rights in his estates numberified under sec. 3 and
was number income or rent from those estates number a charge or
encumbrance on them. he alleged that the stoppage of the
payment of the malikana was illegal and asked for a writ
directing the state to make payment of the malikana. the
state did number file any return to the petition. the high
court held that the maharajas right to the malikana was number
an intermediary interest in the gidhaur estate and did number
cease with the extinction of his proprietary right in the
estate. accordingly the high companyrt issued a writ in the
nature of mandamus companymanding the state of bihar to pay the
malikana due to the maharaja from april 1 1958. the state
of bihar has filed this appeal on a certificate granted by
the high companyrt. section 2 of the bihar land reforms act is the definition
section. section 2 i  defines an estate to mean any land
included-under one entry in any of the general registers of
revenue paying
and revenue free lands and includes a share of or in any
estate. section 2 jj  defines an intermediary in relation
to any estate or tenure to mean a proprietor tenure-holder
under tenure holder and trustee. section 2 jjj  defines an
intermediary interest as meaning the interest of an
intermediary in an estate or tenure. section 2 o  defines
proprietor to mean a person holding in trust or owning for
his own benefit an estate or part of an estate. section
2 r  defines a tenure holder to mean a person who has
acquired from a proprietor or anumberher tenure holder the
right to hold land for the purpose of companylecting rent or
bringing it under cultivation by establishing tenants on it
and includes inter alia the holder of a tenure created for
maintenance of any person. section 2 q  defines tenure to
mean the interest of a tenure holder or under tenure holder. under section 2a the expressions proprietor or tenure-
holder and estate or tenure mean and include
intermediary and the intermediary interest respectively. section 3 1  states that the state government may from time
to time by numberification declare that the estates or tenures
of a proprietor or tenure-holder specified in the
numberification have passed to and become vested in the state. sections 4 a  and 23 1  are as follows -
4.  a  companysequences of the vesting of an
estate or tenure in the state. numberwithstanding anything companytained in any
other law for the time being in force or in
any companytract on the publication of the
numberification under sub-section  1  of section
3 or sub-section  1  or 2 of section 3a the
following companysequences shall ensue na
mely

such estate or tenure including the
interests of the proprietor or tenure-
holder in
any building or part of a building companyprised
in such estate or tenure and used primarily as
office or cutchery for the companylection of rent
of such estate or tenure and his interests in
trees forests fisheries jalkars hats
bazars mela and ferries and all other sairati
interests as also his interest in all sub-soil
including any rights in mines and minerals
whether discovered or undiscovered or whether
being worked or number inclusive of such rights
of a lessee of mines and minerals companyprised
in such estate or tenure  other than the
interests of raiyats or under raiyats  shall
with effect from the date of vesting vest
absolutely in the state free from all
encumbrances and such proprietor or tenure
holder shall cease to have any interests in
such estate or tenure other than the interests
expressly saved by or under the provisions of
this act. .lm15
section 24a 1  determination of companypensation of any
intermediary of temporarily settled estate- 1  in the case
of such intermediary of a temporarily settled estate the
compensation officer shall determine the companypensation
payable in respect of the transference to the state of the
interest of the intermediary in such temporarily settled
estate whether let in farm or held in khas at a sum equal
to twenty times of the malikana payable to him during the
previous agricultural year and where the intermediary has
taken out the engagement of the lands companyprised in such
estate for a fixed period on the payment of a fixed jama
also a sum equal to the pro rata refund of the fixed jama
paid by him for the unexpired period of the engagement. it may be numbered that ss. 2 ii  2 iii  2a and 24a were in-
serted in the parent act by the bihar land reforms
 amendment  act 1953  bihar act xx of 1954 . section 4 was
also amended by the same act. learned attorney-general companytended  1  that the right to the
malikana was an interest in the estates called the gidhaur
estate specified in the numberification of july 24 1953 and on
the issue of the numberification the right to malikana stood
extinguished and  2  alternatively the maharaja was an
intermediary of temporary settled estates in respect of
which the malikana was payable and on the transference of
his intermediary interests in those estates his right to
the malikana stood extinguished and he became entitled only
to the companypensation payable under see. 24a. regulation viii of 1793  sec. 43  described malikana as an
allowance to proprietors in companysideration of their
proprietary rights. baden-powells lands systems of british
india vol. ii. p. 717 said that malikana in bengal and
places other than the punjab usually means an allowance to
an ex-proprietor by way of solatium for a lost right. the custom of paying malikana allowance to displaced pro-
prietors may be traced back to the moghul period. the
claims of the ancient zemindars and village headmen when
thus displaced were usually recognised to the extent of
giving them an allowance for subsistence and sometimes they
continued to receive this allowance in the shape of payments
from the new occupants called russoomi-zemindaree.  see
phillips on law relating to the land. tenures of lower
bengal p. 126 . it was said that malikana is the
unalienable right of proprietorship.  see the answer of
ghulam hosein khan appendix number 16 to mr. shores minutes
of 2nd april 1788 quoted in c.d. fields regulations of the
bengal companye p. 717 . the regulations from 1788 onwards
recognised this custom . regulation viii of 1793 secs. 43
to
47 provided that in the event of the proprietor refusing to
accept a reasonable settlement his lands were to be let in
farm or held khas. when the lands were let in farm the
farmer was to engage to pay 10 of the jama as malikana to
the excluded proprietors in addition to the jama and the
government was to be companysidered as guarantees for the
payment. the malikana was realisable from the farmer as
arrears of revenue. when the lands were held in khas 10 of
the net companylections was to be paid as malikana from the
treasury. section 5 of regulation vii of 1822 repealed the
existing regulations regarding malikana and substituted
fresh provisions for such allowance. the new provisions
were declared by section 11 of regulation ix of 1833 to be
prospective only and to be applicable solely to the
settlements made under them.  see clarke regulations vol. i p. 71 . regulation vii of 1822 was originally enacted
for the ceded and companyquered provinces cuttack pataspur and
its dependencies. it was extended to other provinces by
sec. 2 of reg. ix of 1825. later it was repealed as
regards the numberth western provinces by act xix of 1873 and
fresh provisions for allowance to displaced proprietors were
substituted. the malikana was for a term of years when the
proprietors were dispossessed from management temporarily. it was a permanent grant when the proprietors rights in
their lands were companypletely extinguished. the decisions under the limitation acts relating to the
malikana turned on the particular language of those acts. clause 12 of s. 1 of the limitation act of 1859 seemed to
make it imperative on the companyrts to deal with malikana as an
interest in land and to treat a claim for it as barred if
number made within a period of 12 years after the last receipt
by the proprietor.  see herranund shoo v. mst. ozeerun
ors.  1  govinda chunder roy choudhuri v. ram chunder
chowdhury 2 . but under the limitation act of 1877 the number-
receipt of malikana for 12 years did number extinguish the
right and malikana companyld be sued for within twelve years
from the time when it became due.  see hurmuzi begum v.
hirday narayan 3 . in jaggo bai v. utsava lal 1  the companyrts
below treated malikana as immovable property and since the
point as to its number being immovable property was number taken
earlier the privy companyncil did number allow the point to be
taken before it for the first time. nevertheless the privy
council held that a suit to establish a right as to malikana
was number a suit for possession within the meaning of art. 141
and was governed by art. 120 of the limitation act of 1908.
though malikana is number a charge on immovable property the
explanation to art. 132 of that act declared that for the
purposes of that article it was deemed to be money
charged on immovable property.  1  9 w. r. 102.  2  19 w.r. 95.  3  5 cal. 92 1.  4  51 allahabad 439.
malikana is number rent.  see bhoalee singh v. mst. neemoo
behool 1  and syed shah najamuddin hyder v. syed zahid hos-
sein 1 . it is number rent or revenue derived from land and
number assessable as agricultural income.  maharaja p. s.
bahadur v. state of bihar 3 . in deo kuar v. man kuar  4
malikana was described as a grant of a portion of a land
revenue. for purposes of the pensions act 1871 because
sec. 3 of the act interpreted the expression grant of money
or land revenue to include anything payable on the part of
the government in respect of a right. the privy companyncil
held that malikana was something payable on the part of
government in respect of a right and therefore a suit
relating to malikana was number companynizable by the companyrt without
a certificate from the companylector. the plea of bar under the
pensions act is number taken in the present appeal. malikana is number an incumbrance on the estate of the proprie-
tor liable to pay it and is number extinguished on the sale of
that estate for recovery of arrears of land revenue under
act xi of 1859.  see mahendra narayan roy chowdhuri v. abdul
gafur choudhury  5  . the person in receipt of a permanent
malikana is number a proprietor of the estate for which
malikana is payable and has numbertitle to the alluvial
accretion to the estate  see soudamini dassya v. secretary
of state for india  6
the proprietors of the gidhaur estate in bihar are in
receipt of a permanent malikana for over a century. the
origin of this malikana allowance is number knumbern. from time
immemorial it has been customary in bihar to pay a permanent
malikana allowance to ex-proprietors in lieu of their lost
proprietary right. phillips in his law relating to the land
tenures of lower bengal pp. 144 147 269 said that the
proprietors of the soil in biharuniversally claimed and
possessed a right of malikana and he endeavoured in vain to
trace its origin in bihar. the malikana right of the
excluded proprietors in bihar was acknumberledged in the
regulations passed on august 8 1788. at the time of per-
manent settlement the new grantees were forced to
acknumberledge this right.  see baden-powell land-system of
british india vol. i pp. 516 517 . the bihar board of
revenue misc. rules 1939 art. 342 p. 166 divides malikana
into two classes. malikana of the first class is for a term
of years only that is during the currency of a settlement. malikana of the second class is permanent. it states that
the bihar malikana falls under this class and is a
compensation permanently granted to the proprietors  it
is of a pensionary nature and does number depend upon company-
lections. the permanent malikana is payable at the treasury
on
 1  12 w.
 2  8 c. l. j. 300 at 450.  3  18 patna 101 8.  4  21 1. a. 148160161.  5  35 c. w. n. 1233.  6  50 cal. 522538 545.
april 1 and october 1 every year on presentation of pay
orders issued by the companylector accompanied by a life
certificate of the recipient. there can be numberdoubt that the malikana payable to the pro-
prietors of the gidhaur estate is a permanent grant of money
in lieu of their proprietary rights in lands originally held
by them. the proprietors retained certain estates. on the
publication of the numberification under s. 3 of the bihar land
reforms act 1950 the interest of the maharaja in those
estates was extinguished. but the malikana payable to him
is number an interest in those estates and did number cease on the
issue of the numberification. annexure a to the writ application shows that cess was
deducted from the malikana. under secs. 5 and 421 of the
cess act. 1880 cess is charged on immovable property and is
payable by the holder of an estate or tenure or chaukidari
chakran lands and by a cultivating raiyat. it is number knumbern
under what circumstances cess used to be deducted from the
malikana. from the fact that cess was so deducted it is number
possible to hold that malikana is an interest in the estates
held by the maharaja. in this companyrt the appellant raised the second companytention for
the first time. the learned attorney-general companytended that
the malikana was payable in respect of certain other
estates that the maharaja should be regarded as an
intermediary of those estates and that on the vesting of
those estates in the government the right to malikana ceased
and the maharaja became entitled to companypensation only under
sec. 24a of the bihar land reforms act 1950. the state of
bihar has filed a petition asking for an order admitting
certain documents as additional evidence. we have allowed
this petition. the first document is a letter of the
collector monghyr stating that the gidhaur estate was
getting malikana in respect of 17 tauzis numbered in the
margin. the second document is the khewat of those tauzis. they show that various persons other than the maharaja were
the proprietors of the estates companyprised in the tauzis. the
petition states that all these estates have been numberified
under sec. 3 and have number vested in the state-government. the third document is the numberification published on july 24
1953 showing the estates of which the maharaja was the
proprietor and which have number vested in the state govern-
ment. on the publication of the numberification under sec. 3
all the estates in respect of which the malikana is payable
including the interest of any intermediary therein vested in
the government free from all incumbrances. but the maharaja
is number a proprietor tenure holder or an intermediary of
those estates. the malikana is number rent or income derived
from the estates. number is his tight to the malikana an
incumbrance on them. the maharajas right to the malikana
is number an intermediary interest in the estates
and did number vest in the government. companysequently he has no
right to claim companypensation for the malikana under s. 24a. that section provides for determination of companypensation
payable to the intermediary of a temporarily settled estate
is respect of the transference to the government of the
interest of the intermediary in such estate. the maharaja
had numberintermediary interest in the estates for the
transference of which he companyld claim any companypensation under
sec. 24a. in state of uttar pradesh v. kunwar sri trivikram narain
singh  1  this companyrt held that an allowance of a fixed sum
of money companyputed on the basis of 1/4th share of the net
revenue of certain estates payable by the government to the
ex-jagirdars as companypensation for abandonment of their right
in those estates was number a right or privilege in respect of
land in any estate or its land revenue within the meaning of
s. 6  b  of the uttar pradesh zemindari abolition and land
reforms act 1951 and on the issue of a numberification
vesting those estates in the government the right to the
allowance did number cease. the allowance in that case was
described as a pension. it may be that the allowance was
number strictly a malikana. nevertheless the case is
instructive. it shows that an allowance paid to ex-
jagirdars in companysideration of the extinction of their rights
in land is number an interest in the land. the permanent
malikana stands on the same footing.


criminal appellate jurisdiction criminal appeal number
623 of 1983.
appeal by special leave from the judgment and order
dated the 17th january 1982 of the calcutta high companyrt in
crl. appeal number 160 of 1977.

k. chakraborty for the appellant. s. chatterjee for the respondent. the judgment of the companyrt was delivered by
desai j. special leave granted. appellant gopinath ghosh was companyvicted by the learned
additional sessions judge nadia along with bharat ghosh
sadhu and jagannath ghosh under sec. 302 read with sec. 34
of the indian penal companye for having companymitted murder of rabi
ghosh son of kartick ghosh on august 19 1974 appellant
gopinath ghosh is alleged to have caused an injury with a
fala which landed on the left side chest below the neck of
deceased rabi. information of the offence was lodged by
kartick ghosh father of deceased rabi at nakashipara police
station at about 3.40 p.m. on the date of the occurrence. after companypleting the investigation appellant and two others
were charge-sheeted for an offence under sec. 302 read with
sec. 34 of the indian penal companye. the learned magistrate
committed the case to the companyrt of sessions. the case came
up for trial before the learned additional sessions judge
nadia who on appraisal of evidence held that appellant
gopinath ghosh has caused the fatal injury in furtherance of
the companymon intention of all the three accused and
accordingly companyvicted them for an offence under sec.302 read
with sec. 34 of the indian penal companye and sentence each of
them to suffer imprisonment for life. appellant and the two companyaccused preferred criminal
appeal number 160 of 1977 in the calcutta high companyrt. a
division bench of the high companyrt held that it is
satisfactorily established that the present appellant caused
the injury with a fala to deceased rabi which proved fatal
and therefore the charge under sec 302 i.p.c. is brought
home to him. the high companyrt further held that it is number
shown that the two companyaccused bharat ghosh sadhu and
jagannath ghosh shared the companymon intention with the present
appellant and accordingly allowed their appeal and set aside
their companyviction and sentence and acquitted them of all the
charges. appellant gopinath ghosh has filed this appeal by
special leave. learned companynsel who appeared for the appellant urged
that on the date of the offence i.e. on august 19 1974
appellant was aged below 18 years and was therefore a
child within the meaning of the expression in the west
bengal children act 1959 act for short  and therefore
the companyrt had numberjurisdiction to sentence him to suffer
imprisonment after holding a trial in view of this
contention the companyrt by its order dated march 11 1983
framed the following issue for determination
what was the age of the accused gopinath ghosh
 appellant  on the date of the offence for which he was
tried and companyvicted ? and remitted the issue to learned sessions judge nadia
to certify the finding after giving an opportunity to both
sides to lead oral and documentary evidence. liberty was
reserved with the learned sessions judge to send accused
gopinath ghosh to chief medical officer nadia to ascertain
his age. on receipt of the order made by this companyrt the learned
additional sessions judge first companyrt nadia directed
superintendent of krishnagar jail to produce accused
gopinath ghose in the office of the chief medical officer
nadia on june 41983 for medical examination with a view to
ascertaining his age and submit the report to the companyrt. thereafter the prosecution examined p.w. 1 dr. a. k. basu
chief medical officer of health nadia p.w. 2 dr. j. c.
debnath radiologist p.w. 3 dr. c. r. bhattacharyya
orthopaedic surgeon and p.w. 4 dr. r. b. roy. thereafter
smt. bhaktabala dasi mother of the appellant was examined
as a witness for the defence. the case was adjourned as the
appellant wanted to examine mangalmoy sarkar headmaster of
sudhakarpur high school to prove entries from the admission
register. that request was granted and the headmaster was
examined. the learned additional sessions judge after
hearing both the sides certified his finding that appellant
gopinath ghosh was aged between 16 and 17 years on the date
of the offence i.e. on august 191974. this finding is number
questioned before us. sec. 2 d  of the act defines child to mean a person
who has number attained the age of eighteen years. sec. 2 h
defines juvenile
delinquent to mean a child who has been found to have
committed an offence. fasciculus of sections in chapter iii
bears the heading juvenile delinquents. sec. 22 provides
for granting bail to a child pending inquiry. sec. 23 casts
an obligation on the officer in-charge of the police station
to which a child is brought after arrest to forth with
inform the parent or guardian of the child if he can
be found of such arrest and shall cause to be summoned to
the companyrt before which the child will appear. sec. 24 starts
with a number obstante clause which takes away the jurisdiction
of the companyrt to impose a sentence of death on a juvenile
delinquent as well as the power to impose sentence of
imprisonment or companymitment to prison in default of payment
of fine or in default of furnishing security on a juvenile
delinquent. there is a proviso to sub-cl.  2  of sec. 24
which would enable the companyrt to impose a sentence of
imprisonment on a juvenile delinquent if the companyditions
therein prescribed are satisfied with an obligation on the
court to report the case to the state government and direct
the juvenile delinquent to be detained in such custody as it
may think fit. sec. 25 provides for inquiry by companyrt
regarding juvenile delinquents. it reads as under
where a child having been charged with an offence
appears or is produced before a companyrt the companyrt shall
hold the inquiry in accordance with the provisions in
the companye of criminal procedure 1898 for the trial of
a summons case. sec. 26 companyfers power on the companyrt enabling it to pass
orders regarding juvenile delinquents as therein mentioned. sec. 4 companyfers power on the state government to
establish juvenile companyrts by a numberification to be issued in
that behalf. sec 5 provides that the powers companyferred on
courts by the act shall be exercised amongst others where a
juvenile companyrt is number established by a companyrt of session. it
is number clear whether juvenile companyrt has been established for
the area companyprised in district nadia. sec. 6 provides that
when a child is brought before a magistrate or companyrt number
empowered to pass an order under the act such magistrate or
court shall forward the child to the nearest juvenile companyrt
or other companyrt or magistrate having jurisdiction. it clearly transpires from a companybined reading of the
sections hereinbefore extracted that where a juvenile
delinquent is arrested he she has to be produced before a
juvenile companyrt and if numberjuvenile companyrt is established for
the area amongst others the companyrt of session will have
produces of a juvenile companyrt. such a juvenile delinquent
ordinarily has to be released on bail irrespective of the
nature of the offence alleged to have been companymitted unless
it is shown that there appears reasonable grounds for
believing that the release is likely to bring him under the
influence of any criminal or expose him to moral danger or
defeat the ends of justice. sec. 25 forbids any trial of a
juvenile delinquent and only an inquiry can be held in
accordance with the provisions of the companye of criminal
procedure for the trial of a summons case and the bar of
sec. 24 which has been given an overriding effect as it
opens with the number obstante clause likes away the power of
the companyrt to impose a sentence of imprisonment unless the
case falls under the proviso. unfortunately in this case appellant gopinath ghosh
never questioned the jurisdiction of the sessions companyrt
which tried him for the offence of murder. even the
appellant had given his age as 20 years when questioned by
the learned additional sessions judge. neither the appellant
number his learned companynsel appearing before the learned
additional sessions judge as well as at the hearing of his
appeal in the high companyrt ever questioned the jurisdiction of
the trial companyrt to hold the trial of the appellant number was
it ever companytended that he was a juvenile delinquent within
the meaning of the act and therefore the companyrt had no
jurisdiction to try him as well as the companyrt had no
jurisdiction to sentence him to suffer imprisonment for
life. it was for the first time that this companytention was
raised before this companyrt. however in view of the underlying
intendment and beneficial provisions of the act read with
cl.  f  of art. 39 of the companystitution which provides that
the state shall direct its policy towards securing that
children are given opportunities and facilities to develop
in a healthy manner and in companyditions of freedom and dignity
and that childhood and youth are protected against
exploitation and against moral and material abandonment we
consider it proper number to allow a technical companytention that
this companytention is being raised in this companyrt for the first
time to thwart the benefit of the provisions being extended
to the appellant if he was otherwise entitled to it. the report of the learned additional sessions judge is
self-evident. it is unquestionably established on
unassailable evidence
that on august 19 1974 the date of the offence appellant
was aged between 16 and 17 years. he was therefore a
juvenile delinquent obviously the learned magistrate companyld
number have companymitted his case to the companyrt of session. only an
inquiry companyld have been held against him as provided in sec. 25 of the act and unless the case of the appellant falls
within the proviso to sec. 24  2  he companyld number be sentenced
to suffer imprisonment. therefore the entire trial of the
appellant is without jurisdiction and is vitiated. therefore the companyviction of the appellant for having
committed an offence under sec. 302 ipc and sentence for
imprisonment for life imposed by the learned additional
sessions judge and companyfirmed by the high companyrt are
unsustainable and they must be set aside. the next question is what should be the sequel to our
decision ? the appellant has been in prison for some years. but neither his antecedents number the background of his family
are before us. it is difficult for us to gauge how the
juvenile companyrt would have dealt with him. therefore we
direct that the appellant be released on bail forthwith by
the learned additional sessions judge nadia. the case is
remitted to the learned magistrate for proceeding further in
accordance with law keeping in view the provisions of the
act. before we part with this judgment we must take numberice
of a developing situation in recent months in this companyrt
that the companytention about age of a companyvict and claiming the
benefit of the relevant provisions of the act dealing with
juvenile delinquents prevalent in various states is raised
for the first time in this companyrt and this companyrt is required
to start the inquiry afresh. ordinarily this companyrt would be
reluctant to entertain a companytention based on factual
averments raised for the first time before it. however the
court is equally reluctant to ignumbere overlook or nullify
the beneficial provisions of a very socially progressive
statute by taking shield behind the technicality of the
contention being raised for the first time in this companyrt. a
way has therefore to be found from this situation number
conducive to speedy disposal of cases and yet giving effect
to the letter and the spirit of such socially beneficial
legislation. we are of the opinion that whenever a case is
brought before the magistrate and the accused appears to be
aged 21 years or below before proceeding with the trial or
undertaking an inquiry an inquiry must be made about the
age of the accused on the date of the occurrence. this ought
to be more so where special acts dealing with juvenile
delinquent are in force. if necessary the magistrate may
refer the
accused to the medical board or the civil surgeon as the
case may be for obtaining credit worthy evidence about age. the magistrate may as well call upon accused also to lead
evidence about his age. thereafter the learned magistrate
may proceed in accordance with law. this procedure if
properly followed would avoid a journey upto the apex companyrt
and the return journey to the grass-root companyrt.


criminal appellate jurisdiction criminal appeal number 9
of 1988.
from the judgment and order dated 19. 10. 87 in the
high companyrt of delhi in criminal petition number 239 of 1987.

d. thakur harjinder singh and n malhotra for the
appellant. kuldip singh additional solicitor general c.v. subba
rao and hemant sharma for the respondents. the following judgments of the companyrt were delivered
dutt j. this appeal by special leave is directed
against the judgment of the delhi high companyrt whereby the
high companyrt dismissed the writ petition of the appellant
challenging the validity of his detention under the
conservation of foreign exchange and prevention of smuggling
activities act 1974 hereinafter referred to as the act. information was received in the directorate of revenue
intelligence  for short dri  that the appellant was
engaged in receipt
storage and disposal of smuggled gold on a large scale. on a
specific information received on march 11 1987 that large
quantity of gold had been received by the appellant and
stored at his instance in various premises the dri mounted
a discreet surveillance in the vicinity of the residence of
the appellant. shorn of all details it may be stated that
100 foreign marked gold biscuits each weighing 10 totals
were seized from uttam chand a milk vendor. it was
disclosed by uttam chand that the said gold had been given
to him by the appellant. he also disclosed that the
appellant had given him 300 gold biscuits. the remaining 200
gold biscuits were taken away from uttam chand by raj kumar
alias chhotu the servant of the appellant. raj kumar alias
chhotu however disclosed that he had delivered the said
200 gold biscuits to one bhuramal jain of e/19 ashok vihar
phase-i new delhi. the search of the residence of bhuramal
jain resulted in the recovery of the said 200 biscuits of
foreign marked gold from a zipper bag. it is the case of the detaining authority that the
appellant vijay kumar had at the instance of one dubai
based smuggler mohideen agreed to receive and dispose of
smuggled foreign marked gold biscuits in delhi which would
be supplied to him by two men of mohideen named chandra
bhan and m.p. for a monetary companysideration. it is alleged
that pursuant to that arrangement the appellant had
received in all 1150 biscuits of foreign marked gold of 10
tolas each from the said chandra bhan and m.p. between the
end of january 1987 and march 7 1987. a part of this
quantity of smuggled gold was alleged to have been
delivered by the appellant to one prakash luniya and anumberher
part of it was from time to time stored by the appellant
in the residence of uttam chand who had been engaged by the
appellant to store such smuggled gold on behalf of the
appellant for a monetary companysideration. as stated already
300 smuggled gold biscuits were seized by the dri officers
on march 11 1987. these 300 gold biscuits each weighing 10
tolas that is in all 3000 tolas were valued at
rs.9233620. a provisional order of detention of the appellant dated
april 1 1987 was passed by the respondent number 2 mr. tarun
roy joint secretary to the government of india ministry of
finance department of revenue new delhi the detaining
authority under section 3 1  of the act with a view to
preventing the appellant from dealing in the smuggled goods
otherwise than by engaging in transporting or companycealing or
keeping smuggled goods. the order of detention and the
grounds of
detention both dated april 1 1987 were duly companymunicated to
the appellant by the detaining authority. the case of the appellant was referred to the advisory
board companystituted under sub-clause  a  of clause  4  of
article 22 of the companystitution of india for its opinion
whether there was sufficient cause for the detention of the
appellant. the advisory board after hearing the petitioner
submitted its report dated may 13 1987. the central
government by its order dated june 24 1987 in exercise of
its powers companyferred by section 8 f  of the act companyfirmed
the detention of the appellant and directed that under
section 10 of the act the appellant would be detained for a
period of one year from the date of his detention that is
from april 2 1987.
at this stage it may be stated that before the order
of detention was passed by the detaining authority the
appellant vijay kumar was arrested on a charge under section
135 of the customs act 1962.
being aggrieved by the order of detention as companyfirmed
by the central government the appellant challenged the same
by filing a writ petition before the delhi high companyrt and
as stated already the high companyrt dismissed the writ
petition. hence this appeal by special leave
before companysidering the companytentions of the parties it
may be stated here that similar detention orders were passed
in respect of the said uttam chand bhuramal jain and raj
kumar alias chhotu. they also challenged their detentions by
filing writ petitions before the delhi high companyrt. the high
court however by the same judgment under appeal allowed
their writ petitions and quashed the orders of detention. it is urged by mr. thakur learned companynsel appearing on
behalf of the appellant that the detaining authority was
obliged to companysider before passing the order of detention
that the detenu was already in detention on a charge under
section 135 of the customs act but there is numberindication
in the order of detention that such companysideration was made
or that the detaining authority was aware that the appellant
was already under detention. it is submitted that as there
has been number-application of mind by the detaining authority
as to the said fact of detention the order of detention is
illegal and invalid. further it is submitted by the learned companynsel that
while the
offence under section 135 of the customs act is a number-
bailable one the detaining authority proceeded on an
erroneous assumption that the offence was bailable. in
support of that companytention the learned companynsel has drawn
our attention to the fact as recorded by the high companyrt
that the detaining authority stated in his companynter-affidavit
that he was aware at the time of passing the detention order
that uttam chand was in jail but there was every likelihood
of his being released from jail as the offence under
section 135 of the customs act was a bailable one. it is
urged by the learned companynsel that the detaining authority
was number at all justified in passing the order of detention
on such assumption. it is number companyrect to say that the detaining authority
was number aware of the fact that the appellant was already in
detention on a charge under section 135 of the customs act. indeed in paragraph 13 of the grounds of detention it has
been categorically numbericed by the detaining authority that
bhuramal jain uttam chand narender kumar raj kumar and
the appellant were all arrested by the dri officers on march
13 1987 and produced before the additional chief
metropolitan magistrate new delhi. thus the detaining
authority was fully aware of the fact of the arrest of the
appellant. it is number necessary that in the order of
detention such awareness of the detaining authority has to
be indicated. it is enumbergh if it appears from the grounds of
detention that the detaining authority is aware of the fact
that the detenu is already in detention. lt is true that in uttam chands case the detaining
authority proceeded on the basis that the offence for which
he was arrested and detaining was a bailable offence. although there is numbersuch statement of the detaining
authority in regard to the appellant it may be assumed that
he was also of the impression that the offence under section
135 of the customs act for which the appellant was arrested
and detained in jail was a bailable offence. but the
question whether or number a particular offence for which a
detenu has been detained is a bailable or number-bailable
offence does number in our opinion have any bearing on the
question of passing an order of detention. even though an
offence is a number-bailable one an accused may be enlarged on
bail. again an offence for which a detenu has been put
under detention may be a bailable offence. it has been
observed by this companyrt in rameshwar shaw v. district
magistrate burdwan 1964 4 scr 921 that whether an order
of detention can be against a person who is already in
detention or in jail will always have to be determined in
the facts and circumstances of each case. again in ramesh
yadav v. district magis-
trate etah 1985 4 scc 232 it has been ruled by this
court that merely on the ground that an accused in detention
as an under-trial prisoner was likely to get bail an order
of detention under the national security act should number
ordinarily be passed. the position has been made clear in suraj pal sahu v.
state of maharashtra 1986 4 scc 378. while reiterating
the principles of law laid down in ramesh yadavs case
 supra  this companyrt further observes where the offences in
respect of which the detenu is accused are so inter-linked
and companytinuous in character and are of such nature that
these affect companytinuous maintenance of essential supplies
and thereby jeopardize the security of the state then
subject to other companyditions being fulfilled a man being in
detention would number detract from the order being passed for
preventive detention. in a recent decision in smt. sashi aggarwal v. state of

p. writ petition  crl.  number 735 of 1987 disposed of on
11.1.1988 this companyrt has made a review of all the decisions
on the point. one of us  jagannatha shetty j.  speaking
for the companyrt observed as follows
section 3 of the national security act does number
preclude the authority from making an order of
detention against a person while he is in custody
or in jail but the relevant facts in companynection
with the making of the order would make all the
difference in every case. the validity of the
order of detention has to be judged in every
individual case on its own facts. there must be
material apparently disclosed to the detaining
authority in each case that the person against
whom an order of preventive detention is being
made is already under custody and yet for
compelling reasons his preventive detention is
necessary. on a companyspectus of the above decisions we are of the
view that when a detenu is already under detention for an
offence whether bailable or number-bailable the detaining
authority will take into his companysideration the fact of
detention of the detenu and as laid down in sashi
aggarwals case  supra  there must be companypelling reasons to
justify his preventive detention in spite of the fact that
he is already under detention on a charge of a criminal
offence. there must be material for such companypelling reasons
and the material or companypelling reasons must appear from the
grounds of detention that will be companymunicated to the
detenu. in other words two facts must appear from the
grounds of detention namely  1  awareness of the detaining
authority of the fact that the detenu is already in
detention and  2  there must be companypelling reasons
justifying such detention despite the fact that the detenu
is already under detention. in the instant case it has been already numbericed that
the detaining authority was aware of the fact that the
appellant was arrested and produced before the additional
metropolitan magistrate new delhi. the grounds of detention
also disclosed companypelling reasons that the appellant should
be preventively detained under the act in spite of his
detention on a charge under section 135 of the customs act. it is number the case of the appellant that the grounds of
detention do number disclose companypelling reasons. all that has
been urged on behalf of the appellant is that there has been
number-application of mind by the detaining authority of the
fact of detention of the appellant. we are however unable
to accept the companytention made on behalf of the appellant
that there has been number-application of mind by the detaining
authority to the relevant facts. the detaining authority
besides being aware of the fact that the appellant was
already in detention has taken into companysideration the
relevant facts before passing the impugned order of
detention under the act which is apparent from the grounds
of detention. in the circumstances the companytention that the
impugned order of detention should be struck down on the
ground of number-application of mind by the detaining
authority is rejected. it is next companytended on behalf of the appellant that
the advisory board acted companytrary to the principles of
natural justice in number examining the witnesses of the
appellant whom the appellant wished to examine in rebuttal
of the allegations made in the grounds of detention and also
in number companysidering the request of the appellant to have the
assistance of his friend before the advisory board. in order
to companysider this companytention a few facts may be stated. on
april 291987 the advisory board held its meeting. on april
27 1987 the appellant made a representation to the
advisory board. in that representation it has been stated
by the appellant i want to produce in rebuttal of the
allegations made against me shri raj kumar uttam chand and
shri narender as my witnesses. they are present and they may
be examined in rebuttal of the allegations made against me
in the grounds of detention. a companyy of this representation
dated 23.4.1987 was filed before the advisory board on
29.4.1987. this fact has number been denied in the affidavit of
the respondents. it is submitted by the learned companynsel of the appellant
that when there is a specific prayer in the said
presentation that the appellant
would like to examine certain witnesses who were present
outside the board room the advisory board acted illegally
and in violation of the principles of natural justice in number
giving the appellant an opportunity to examine the
witnesses. further it is submitted that the advisory board
should have also allowed the appellant to have the
assistance of his friend who was also waiting outside the
board room in defending the appellant before the advisory
board. affidavits of the said witnesses and also of the
friend who was to assist the appellant were filed before
the high companyrt in support of the allegation that they were
all present and waiting outside the board room. mr. tarun roy the detaining authority filed a
counter-affidavit wherein he stated that the appellant did
number ask for the examination of these witnesses though he
stated so in his representation regarding the examination of
the witnesses. the appellant himself explained his case
before the advisory board and kept silent as to whether his
witnesses were present outside or whether he would like to
examine them in rebuttal of the charges made against him. further it is stated in the affidavit that the appellant
did number bring his friend with him to assist him although he
had stated in his representation that he might be permitted
the assistance of an advocate or a friend at the time of
hearing. the allegations of the appellant that he was denied
his right to examine witnesses or the assistance of a friend
have been stated by the detaining authority in his affidavit
as totally false. it has been also averred by the detaining
authority in his affidavit that the appellant was permitted
by the advisory board to have the assistance of an advocate
or a friend at the time of hearing but the appellant did
number avail himself of the same. a similar companytention was raised before the high companyrt. the high companyrt after referring to the affidavit of the
detaining authority has observed that it was for the detenu
at the time of hearing to submit to the advisory board that
his witnesses who were present outside the board room
should be examined and that he should also be allowed
assistance of his friend. referring to the report of the
advisory board dated may 13 1987 the high companyrt points out
that while the appellant vijay kumar raj kumar and uttam
chand appeared in person bhuramal jain was represented by
his companynsel before the advisory board. the advisory board
did companysider the representation of vijay kumar and heard him
and also the companydetenus
it appears from the observation made by the high companyrt
that the appellant without making any prayer before the
advisory board for
the examination of his witnesses or for giving him
assistance of his friend started arguing his own case
which in all probability had given an impression to the
members of the advisory board that the appellant would number
examine any witness. the appellant should have made a
specific prayer before the advisory board that he would
examine witnesses who were standing outside. the appellant
however did number make any such request to the advisory
board. there is numberreason for number accepting the statement of
the detaining authority that the appellant was permitted by
the advisory board to have the assistance of an advocate or
a friend at the time of hearing but the appellant did number
avail himself of the same. in the circumstances we do number
think that there is any substance in the companytention made on
behalf of the appellant that the advisory board acted
illegally and in violation of the principles of natural
justice in number examining the witnesses produced by the
appellant at the meeting of the advisory board and in number
giving permission to the appellant to have the assistance of
his friend. the appellants wife sent a representation dated
11.4.1987 to the government and the appellant also sent a
representation dated 23.4.1987 to the detaining authority. it is the companytention of the appellant that both the
government and the detaining authority made unreasonable
delay in disposing of the representations. it is also
complained that the representations were number companysidered
independently inasmuch as the same were disposed of after
the advisory board submitted its report. it is submitted
that in view of the above facts the order of detention
turns out to be illegal and invalid and should be quashed. in regard to the representation of the appellants wife
dated 11.4.1987 we may refer to the additional affidavit
affirmed by mr. s.k. chaudhary under secretary to the
government of india ministry of finance department of
revenue new delhi on behalf of the respondents. in
paragraph 2 of the additional affidavit it has been stated
as follows
i submit that in the above case the petitioners
wifes representation dated 11.4.1987 was received
by the office of the ministry of state for finance
on 21.4.1987 and from that office it was received
in companyeposa unit on 22.4.1987 on which date the
comments from the directorate of revenue
intelligence were called for. the companyments from
the said directorate were received on 27.4.1987 at
5.35 p.m. these companyments were received by
the senior technical officer on 28.4.1987. he
however companyld number take action on 29.4.1987 as the
hearing of the petitioners case was fixed before
the advisory board on that date. the senior
technical officer put his numbere on 30.4.1987 to the
detaining authority. the detaining authority was
however on leave on 1.5.1987 and 2nd may and 3rd
may 1987 being holidays the detaining authority
passed orders on 4.5.1987 rejecting the
representation of the petitioners wife and
forwarded the file to the minister of state for
finance for his companysideration on behalf of the
central government. the minister rejected the
representation on 6.5.1987 and the file was
received in the section companycerned on 7.5.1987.
thereafter the memo regarding rejection of the
representation was issued on 8.5.1987.
it appears from paragraph 2 of the affidavit extracted
above that companyments from the dri were received by the senior
technical officer on 28.4.1987. he however companyld number take
action on 29.4.1987 as hearing of the appellants case was
fixed before the advisory board on that date and
accordingly he placed the matter with his numbere on 30.4.1987
before the detaining authority. mr. thakur companynsel for the
appellant demurs to the dealing of the matter by the senior
technical officer and number by the detaining authority
himself. we do number think that any objection can be raised on
this account. it is apparent that the senior technical
officer dealt with the matter immediately on getting the
comments from the dri so that there was numberdelay in putting
up the matter before the detaining authority or the
government as the case may be. whatever steps he had taken
must have been on behalf of the detaining authority and for
expedition. although he received the companyments on 28.4.1987
he companyld number take action on 29.4.1987 as the hearing of the
appellants case was fixed before the advisory board on that
date. it can be reasonably inferred from this statement that
it was necessary for the senior technical officer to be
present before the advisory board with the relevant records
and companysequently a days delay in putting up the matter
before the detaining authority was quite justified. it is however companyplained that when the representation
was made to the government it was number at all justified on
the part of the detaining authority to reject the
representation. in other words it is submitted the
detaining authority had numberjurisdiction to reject the
representation when it was meant for the government. it is
true that the said s.k. chaudhary has stated in his
affidavit that the detaining
authority rejected the representation of the appellants
wife by his order dated 4.5.1987. mr. kuldip singh the
learned additional solicitor general however points out on
a reference to the record that the detaining authority did
number reject the representation but only companymented merits
rejection. thus a wrong statement has been made in the
affidavit. even though the position is altered yet it is
submitted by the learned companynsel for the appellant that the
comment of the detaining authority merits rejection had
influenced the mind of the minister who companysidered the
representation on behalf of the government. companynsel further
submits that there was numbernecessity for getting a companyment
from the detaining authority inasmuch as any companyment by him
against the detenu would influence the mind of the
government. we are unable to accept the companytention. in our
view unless the companyments of the relevant authorities are
placed before the minister it will be difficult for him to
properly companysider the representation. there is numbersubstance
in the companytention that any companyment from the detaining
authority would influence the mind of the government. such
assumption is without any foundation. the companytention in this
regard is accordingly rejected. as regards the representation dated 23.4.1987 of the
appellant to the detaining authority it appears from the
statement made in paragraph 3 of the said additional
affidavit that it was rejected by him on 4.5.1987. there is
a further statement that after such rejection the file was
forwarded to the minister of state for finance for his
consideration on behalf of the central government and the
minister rejected the representation on 6.5.1987. it is
contended by mr. thakur learned companynsel for the appellant
that as the representation was addressed to the detaining
authority there was numbernecessity for forwarding the file to
the minister after the representation was rejected by the
detaining authority. the learned additional solicitor
general however points out with reference to the records
that the file was number forwarded to the minister after the
rejection of the representation by the detaining authority. there was therefore a mistake in the statement made in
paragraph 3 of the said additional affidavit. in our
opinion numberhing turns out on the fact that after the
representation was rejected the relevant file was sent to
the minister for his companysideration. we are also told by the learned additional solicitor
general that the report of the advisory board is dated may
13 1987 and both the representations were disposed of by
the detaining authority and the government on may 6 1987
that is much before the report of the
advisory board and as such there is numberquestion of the
consideration of the representations of the appellant and
his wife being influenced by the report of the advisory
board. it is apparent that as the report of the advisory
board is dated may 13 1987 there is numberfoundation for the
contention of the appellant that the companysideration of the
representations was influenced by the report of the advisory
board. it is urged by the appellant that he was greatly
prejudiced as he was number supplied with the companyies of the
documents that were relied upon and taken into companysideration
by the detaining authority along with the ground of
detention and that such documents as asked for by him were
given to him only on 20.5.1987 and therefore there was a
delay of 28 days. a similar companytention was advanced before
the high companyrt. according to the respondents the documents
were all supplied to the appellant with the grounds of
detention. in his representation the appellant had asked
for four documents and the high companyrt was satisfied that all
these four documents had in fact been supplied to the
appellant. accordingly it has been observed by the high
court that the appellant cannumber make any grievance that
these documents were supplied to him only on 20.5.1987 and
number along with the grounds of detention. there is
therefore numberfactual foundation in the companyplaint made by
the appellant that he was number supplied with the relevant
documents along with the grounds of detention. the last point that has been urged on behalf of the
appellant is that the government has number applied its mind
while companyfirming the detention of the appellant for the
maximum period of one year from the date of detention as
prescribed in section 10 of the act. it is submitted that
some reason should have been given why the maximum period of
detention is imposed on the appellant. this companytention in
our opinion is devoid of any merit. section 10 of the act
provides inter alia that the maximum period for which any
person may be detained in pursuance of any detention order
shall be a period of one year from the date of detention or
the specified period. section 10 does number provide that in
imposing the maximum period of detention any reason has to
be given. in companyfirming the order of detention it may be
reasonably presumed that the government has applied its mind
to all the relevant facts and thereafter if it imposes the
maximum period of detention it cannumber be said that the
government has number applied its mind as to the period of
detention. in any event under section 11 of the act a
detention order may at any time be revoked or modified by
the government. in the circumstances we do number think that
the detenu was in the least prejudiced or that there has
been
number-application of mind by the government to the question of
period of detention of the detenu. this companytention of the
appellant also fails. numberother point has been urged in this
appeal. for the reason aforesaid the judgment of the high
court is affirmed and the appeal is dismissed. jagannatha shetty j. i agree respectfully with the
judgment of my learned brother m.m. dutt j. but i add a
few words of my own on the ever recurring question. the first question is as to the legality of an order of
detention of the person who was already in custody. the law
report companytains several decisions on this point and they
furnish an instructive lesson for both sides. in all the
cases there is however one uniform principle stated and
reiterated. it is this the detaining authority must have
awareness of the fact that the detenu is already in custody
and yet for companypelling reason his preventive detention is
found necessary. the question number raised is what should be the
compelling reason justifying the preventive detention if the
person is already in jail and where one should find it? is
it from the grounds of detention or apart from the grounds
of detention? it was urged that apart from the grounds of
detention there must be some other material disclosed to the
detaining authority that if the detenu is released on bail
he would again carry on the prejudicial activities. i do number think that the companytention is sound. there
cannumber be any other material which can enter into the
satisfaction of the detaining authority apart from the
grounds of detention and the companynected facts there in. the
satisfaction of the detaining authority cannumber be reached on
extraneous matters. the need to put the person under
preventive detention depends only upon the grounds of
detention. the activities of the detenu may number be isolated
or casual. they may be companytinuous or part of a transaction
of racket prejudicial to the companyservation or augmentation of
foreign exchange. then there may be need to put the person
under preventive detention numberwithstanding the fact that he
is under custody in companynection with a case. as said by
sabyasachi mukharji j. in suraj pal sahu v. state of
maharashtra 1986 4 s.c. 378 at 391.
but where the offence in respect of which
the detenu is accused are so interlinked and
continuous in
character and are of such nature that these affect
continuous maintenance of essential supplies and
thereby jeopardize the security of the state then
subject to other companyditions being fulfilled a man
being in detention would number detract from the
order being passed for preventive detention. there cannumber however be any uniform principle to be
applied in this regard. each case has to be judged on its
own facts and on its own grounds of detention. if the
grounds are germane it would be perfectly legitimate
exercise of power to make an order of detention. in the instant case having regard to the nature of the
grounds furnished to the detenu i agree with my learned
brother that there is hardly any justification to find
fault with the order of detention. the next aspect which needs to be clarified is whether
it is necessary for the companycerned authority to give special
reasons for directing the detention for the maximum period
prescribed under the act. it was urged that it is a must
for the companycerned authority to give special reasons. and if
numbersuch reasons are given then it amounts to number
application of the mind. the decision of the madhya pradesh
high companyrt  gwalior bench  in bharat v. district
magistrate 1986 criminal law journal 1976 was relied upon
in support of the companytention. there it was observed  at p.
186 . we did number find in the records companysideration of
relevant circumstances that obtained on the date
when the companyfirmation was made in each case. no
reasons are given as to why the authority
concerned companysidered it necessary to companytinue
detention in each case for maximum period of
twelve months. whether the objective sought to be
fulfilled in each case companyld be subserved by
fixing the period of companytinued detention for a
lesser period was number at all companysidered. we are unable to subscribe to this view. it is against the
purpose and scheme of the companyeposa act. the order made under
section 3 1  is in the nature of an interim order. it is
subject to the opinion of the advisory board under section
8 f  of the companyeposa act which provides

advisory board
for the purposes of sub-clause  a  of clause
 4  and sub clause  c  of clause  7  of article
22 of the companystitution
xxx xxx xxx xxx xxx
xxx xxx xxx
xxx
 f  in every case where the advisory board has
reported that there is in its opinion sufficient
cause for the detention of a person the
appropriate government may companyfirm the detention
order and companytinue the detention of the person
concerned for such period as it thinks fit and in
every case where the advisory board has reported
that there is in its opinion numbersufficient cause
for the detention of the person companycerned the
appropriate government shall revoke the detention
order and cause the person to be released
forthwith. if the advisory board reports that there is in its
opinion sufficient cause for the detention of the person
the companycerned authority may companyfirm and companytinue the
detention of the person for such period as it thinks fit. the expression as it thinks fit in section 8 f  of the act
indicates that the companycerned authority after companysidering the
report of the advisory board may fix any period for
detention. the authority is number required to give any-special
reason either for fixing a shorter period or for fixing the
maximum period prescribed under section 10. the opinion of
the advisory board and the grounds of detention are the only
basis for companyfirming and companytinuing the detention for any
period even upto the maximum period prescribed.