Dipak Bose Alias Naripada Vs. State of West Bengal - Court Judgment

Excerpt:
criminal - detention - law and order - section 3 (1) and (2) of the maintenance of internal security act, 1971 - appellant and his associates involved in two incidents of killing person in a public place - appellant detained under sections 3 (1) and 3 (2) by district judge - hence, present appeal - appellant contended that grounds of detention furnished to him at the time of his arrest were not relevant to the objects for which the act permits preventive detention - every assault in a public place like a public road and terminating in the death of a victim was likely to cause horror and even panic and terror in those who are the spectators - there is nothing in the two incidents set out in the grounds in the present case to suggest that either of them was of that kind and gravity which would jeopardise the maintenance of public order - held, the two incidents alleged against the appellant pertained to specific individuals and therefore related to and fell within the area of law and order - appeal allowed. - [] on partition being effected through a suit, a hindu joint family who has only an interest in the entire joint family property acfamily. the preliminary decree passed by the court determined 10/16 as the share of the appellant family and 6/16 as that of the other branch. those assets of the erstwhile larger joint family which could not be physically divided were auctioned between the two branches and in this manner a sugar mill was purchased for 34 lacs by the appellant family. in income-tax proceedings depreciation under s. 10(2) (vi) of the indian income-tax act, 1922 was claimed on the above valuation of 34 lacs. the claim was rejected by the income-tax officer as well as the appellate assistant commissioner, on the ground that the value for the purpose of depreciation was not the price determined at the family auction, but the original cost to erstwhile larger joint family. the tribunal held that the 6/16 share of the other branch was purchased at the auction and its value had to be taken as the basis of the price determined at the auction, but the appellant family's own share of 10/16 was not purchased at the auction and therefore had to be valued at the original cost to the larger joint family. in reference, the high court held that the distinction made by the tribunal was wrong and that the shares of both branches had to be valued on the basis of the original cost to the larger family. appeal was filed before this court with certificate. held: per subba rao and sikri, jj. it may be that in strict legal theory partition may not involve a transfer, but the substance of the transaction is that an erstwhile member of a joint hindu family who has only an interest in the entire joint family property acquires an absolute title to a specific property. the cost of the property to the member at the date of partition would be the value given to it for the purpose of allotment. provided it was real, or the price at which he purchased it in auction, or the value of it ascertained otherwise. [647a-c] in the case of assessees acquiring a property by purchase, gift, bequest, or succession, courts have held that the cost of the property to the assessee was not the original cost of it to his predecessor but its actual cost to him at the time of the purchase, gift, bequest or succession. in substance there is no difference in the matter of ascertaining the cost of an asset to an assessee whether he is a donee, purchaser, legatee, successor, or a divided member e.f a joint hindu family. [646d; 647a] commissioner of income-tax, madras v. the buckingham & carnatic company, ltd., madras(1935)3 i.t.r. 384(p.c.), jagata coal co. ltd. v. commissioner of income-tax, west bengal (1959) 36 i.t.r. 521 (s.c.), indian iron & steel co. ltd. v. commissioner of income-tax, bengal, (1943) 11 i.t.r. 328 (p.c.), francis vallabaravar v. commissioner of income-tax, madras (1960) 40 i.t.r. 426 and commissioner of income-tax, bombay v. solomon & sons (1933) 1 i.t.r. 324, referred to. commissioner of income-tax, u.p. & c.p.v. seth mathuradas mohta, (1939)7 i.t.r. 160, disapproved. in the present case the valuation given to the property was not notional but a real one; indeed the property was sold in the open auction between the members of the larger joint family and the value fetched thereunder entered into the scheme of partition. [647 c-d] therefore, even in respect of the appellant's own share of 10/16, the valuation for the purposes of s. 10(2)(vi) had to be on the basis the price which the appellant bid at the auction. per shah, j. (dissenting). by the preliminary decree the appellant family became entitled to a 10/16th share in every item of the property of the larger joint family; the other branch became entitle to the remaining i.e. 6/16th share in each item. the appellant being already owner of 10/16th share could not purchase the same at the auction. in substance the appellant purchased, by being declared the highest bidder, the remaining 6/16th share belonging to the other branch. [650 c-e] the asset in question, viz, the sugar factory, at all material times remained a business asset. acquisition of the interest of the other branch by the appellant did not alter the character or use of the asset; nor did it make any fundamental alteration in its value to the appellant so as wholly to displace its original value even in respect of its share which it continued to own. [654 b-d] the tribunal therefore, had rightly held that in respect of the 6/16th share of the other branch, depreciation had to be allowed to the appellant on the basis of the auction price. the high court wrongly interfered with this finding the revenue not having appealed against it. on the appellant's 10/16th share, which the appellant could not be said to have purchased, depreciation had to be calculated on the basis of original cost to the larger family. [654 e-g] case law discussed. - that case was under the preventive detention act of 1950 which did not contain any special definition of the expression 'acting in any manner prejudicial to the maintenance of public order' as in the president's act 19 of 1970. the three incidents set out in the grounds of detention there were held to be stray incidents affecting law and order only which, as the court stated there, could well be dealt with under the ordinary penal laws of the country. every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators.j.m. shelat, j.1. this is a petition sent to this court by the petitioner from jail and treated as one under article 32 of the constitution challenging the validity of his detention under an order passed by the district magistrate, 24 parganas under section 3(1) and (2) of the maintenance of internal security act, 26 of 1971. the principal challenge to the petitioner's said detention is that the grounds of detention furnished to him at the time of his arrest are not relevant to the objects for which the act permits preventive detention.2. the two grounds of detention supplied to the petitioner, as afore said, read as follows:(1) on 12-8-71 at about 17.00 hours you and some of your associates being armed with bhojali, bomb, choppers etc. etc. kidnapped kashinath saha of west putiary, p.s. behala and killed him at k.m. naskar road, p.s. jadavpur. you thereby created panic and terror in the locality and disturbed public order.(2) on 26-8-71 at about 12.00 hours you and some of your associates being armed with bombs, daggers, choppers, pipe guns etc. dragged one jyotirmay bhattacharya and killed him at h.l. sarkar road, bansdroni, p.s. jadavpur. you thereby created panic and terror in the locality and disturbed public order.3. prima facie the grounds appear to affect two individuals who were the victims of the alleged two assaults, and therefore, do not appear to be relevant grounds affecting the maintenance of public order for which only the power of detention under the act is intend ed to be used. counsel for the state, however, relied on certain recent decisions of this court justifying the exercise of power by the state of west bengal under the act. in joydeb gorai v. state of west bengal : 1973crilj462 ground no. (1) set out only a threat to kill one bibhuti bhusan ghosh for his refusal to rub out certain anti-naxalite slogans on the wall of a house. the argument was that even such a threat to kill an individual was held in that case to be a relevant ground. it is, however, clear from that decision that that ground was held to be a relevant one as such an act fell within the special definition of the expression 'acting in any manner prejudicial to the maintenance of public order' in section 3(2)(d) of the west bengal (prevention of violent activities) act, 19 of 1970. similarly, the case of nagendra nath mondal v. state of west bengal : 1972crilj482 was a case arising under the west bengal (prevention of violent activities) act. the grounds of detention there were that the petitioner there and his associates set fire to a school and its registers and equipments, placing a bomb in the school also with a view to scare away the members of the staff from putting out the fire. that ground was held to be a valid ground, jeopardising the maintenance of public order and falling under section 3(2)(d) of the said act. in that decision a distinction was made between acts which by reason of their impact and potentiality affect the even tempo of the life of the people in the locality where they are committed and those which do not have such an impact and are acts which concern only specific individuals. as an example of the latter class, the case of sudhir kumar saha v. the commr. of police, calcutta : 1970crilj843 may aptly be recalled. that case was under the preventive detention act of 1950 which did not contain any special definition of the expression 'acting in any manner prejudicial to the maintenance of public order' as in the president's act 19 of 1970. the three incidents set out in the grounds of detention there were held to be stray incidents affecting law and order only which, as the court stated there, could well be dealt with under the ordinary penal laws of the country. in amiya kumar karmakar v. state of west bengal, w.p. no. 190 of 1972, d/-31-7-1972 : report in : air1972sc2259 the order of detention was passed under section 3(1) and (2) of the present act. in that case the detention order was challenged on the ground that one of the two grounds of detention was irrelevant inasmuch as the incident there referred, to pertain to the question of law and order and not of public order. in dealing with the challenge, the court referred to arun ghosh v. state of west bengal : 1970crilj1136 and : 1972crilj482 to demonstrate that the true distinction between the areas of law and order and of public order lay not merely in the nature or quality of the act but in the degree and extent of its reach upon society. acts similar in nature but committed in different contexts and circumstances might cause, it was said, different reactions, in one case affecting specific individuals only and in others affecting public order. the act in question there, though prima facie affecting an individual, was held in the context and circumstances of the case to be one jeopardising or likely to jeopardise the maintenance of public order. a similar challenge was also repelled on similar grounds in arun kumar sinha v. state of west bengal w.p. no. 117 of 1972, d/- 31-7-1972 : reported in : air1972sc2371 .4. the question, therefore, to be properly asked in the present case is whether acts attributed to the petitioner in the grounds of detention fell in the same class and have the same kind of impact as acts alleged in the cases above referred to. in the two incidents described in the grounds the petitioner was said to have been accompanied by certain associates and it was also alleged that he and his associates carried with them certain weapons including bombs. the first incident was said to have taken place on august 12, 1971 when one kashinath shah was killed on a public road. the second incident was said to have taken place on august 26, 1971 when one jyotirmay was dragged out of the shop and killed on the road. both the acts were said to have caused panic and terror in the locality. neither of the grounds, however, suggested that the petitioner or any one of his associates used bombs in perpetrating the crime, nor was it suggested that the acts were done in pursuance of or for promoting a certain political ideology as in some cases which have recently come up before this court, so that other persons of the locality not subscribing to that cult or ideology might feel apprehensive that they would next become the targets of similar attacks in future and thus disturb the even tempo of the life of the community in that locality. every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. but that does not mean that all of such incidents do necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. there is nothing in the two incidents set out in the grounds in the present case to suggest that either of them was of that kind and gravity which would jeopardise the maintenance of public order. no doubt bombs were said to have been carried by those who are alleged to have committed the two acts stated in the grounds. possibly that was done to terrify the respective victims and prevent them from offering resistance. but it is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there would be prevented from following their usual avocations of life. the two incidents alleged against the petitioner, thus, pertained to specific individuals, and therefore, related to and fell within the area of law and order. in respect of such acts the drastic provisions of the act are not contemplated to be resorted to and the ordinary provisions of our penal laws would be sufficient to cope with them.5. in the circumstances the petition must be allowed and the release of the petitioner directed. order accordingly.