Criminal Appeal No 750 of 1989
From the Judgment and Order dated 1141988 of the Gujarat High Court in Spl
Application No 733 of 1987
Kapil Sibal Additional Solicitor General A Subba Rao and P Parmeshwaran for the Appellants
Vineet Kumar and MN Shroff for the Respondents
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
This criminal appeal preferred by the appellants namely Union of India and the Additional Secretary to the Government of India is against the judgment of the High Court of Gujarat at Ahmedabad in Special Crimi nal Application No 733 of 1987 dated 114
1988 quashing the order of detention dated 196
1987 passed by the second appellant in exercise of the powers under subsection 1 of Section 3 of the Conservation of Foreign Exchange and Pre vention of Smuggling Activities Act 1974 with a view to preventing the first respondent Vasanbharthi Jivanbharthi from engaging in transporting smuggled goods
It seems that the first respondent detenu has challenged the detention on numerous grounds one of which being that none of the members of his household had been informed of the passing of the impugned order of detention and of the fact that the detenu had been taken into custody and also of the place where the detenu was detained
This ground was only subse quently added by an amendment with the permission of the Court
The High Court holding that the detenu s relatives were not informed about the detention order or about the place where the detenu was detained in compliance with the observation by this Court in AK Roy vs Union of India   concluded that the order has been vitiated by such non compliance
Further the High Court has rejected the plea of 744 the appellants that the relatives of the detenu knew about the detention order as well the place of detention and stated as follows Hence if the relatives of the detenu have not been informed and even if from the record it is found that the relatives had come to know about it from some source the order of detention would most certainly be invalidated
 In the result the order of detention was quashed and the detenu was directed to be set as liberty
Mr Kapil Sibal the learned Additional Solicitor Gener al has assailed the finding of the High Court stating that the respondent No 1 detenu was already an undertrial prisoner and his relatives inclusive of his maternal uncle had visited him at the jail within two days and therefore that the non communication of a written intimation about the fact of passing of the order of detention and of the place of detention in pursuance of the detention order have no significance and as such the observation made in AK Roy s case can hardly by availed of by the detenu and the order cannot said to be invalidated on that ground
This plea is taken specifically in paragraph 21 and in Grounds I  II in paragraph 23 of the Special Leave Petition
Besides the above stand taken in the SLP the appellants have reiterat ed
the same in paragraph 9 of the application for ex parte stay of the Order of the High Court the relevant portion of which reads thus The affidavit in opposition was filed on behalf of the Union of India that the detenu was already under trial prisoner and his relatives in fact knew that and also that the maternal uncle had immediately within two days visited him at the jail
Therefore
it was not necessary to inform the relatives of his detention and place of detention as contemplated in the decision of the Supreme Court reported in  K Roy s case
 No counter is filed by the first respondent detenu in opposition to the above plea of the appellants
In the above background we shall now examine whether the High Court is justified in setting aside the Order for the reasons mentioned supra on the basis of the decision in AK Roy s case The relevant portion of the observation in AK Roy s case reads thus 745 In order that the procedure attendent upon detentions should conform to the mandate of Article 21 in the matter of fairness justness and reasonableness we consider it imper ative that immediately after a person is taken in custody in pursuance of an order of detention the members of his household preferably the parent the child or the spouse must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody
Intimation must also be given as to the place of detention including the place where the detenu is trans ferred from time to time
The object and purpose of the above observation in our view seem to be that the family members of the detenu should not be kept in darkness by withholding the informa tion about the passing of the order of detention and the place of detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meeting their relations and getting any help or assistance
Coming to the present case we are satisfied that the family members had sufficient knowledge about the detention of the detenu by virtue of the mittimus issued as well the place of detention
Therefore no legitimate grievance can be made that there is contravention to the observation in AK Roy s case
Hence for the reasons mentioned above we are unable to agree with the view taken by the High Court and accordingly we set aside the impugned Judgment and remit the matter to the High Court of Gujarat for consideration of the other contentions raised by the detenu challenging the order of detention and to dispose of the case on its merit
We hope that the High Court will give priority to this matter and dispose of the same expeditiously
Taking into consideration of the fact that the detenu is now enlarged consequent upon the judgment of the High Court which we have set aside the detenu shall not be taken into custody to serve the unexpired period of detention till the matter is finally disposed of by the High Court
The Criminal Appeal is disposed of accordingly
PSS Appeal allowed


Summary:
Election of six Members to the Rajya Sabha by the elect ed Members of the Tamil Nadu Legislature Assembly was held in June 1986
The appellant and respondent nos
1 to 7 were the eight candidates in the field
Respondent Nos 1 to 6 were declared duly elected and the appellant was declared as having lost the election
The appellant thereupon filed an election petition which was dismissed by the High Court
Before this Court it was contended on behalf of the appellant that 1 the first preference vote in his favour in which the first preference was marked on the ballot paper in green ink had been wrongly rejected on the ground that it was marked otherwise than with the article supplied for the purpose ie the ball point pen with blue ink which had been kept in the voting booth and 2 the three ballot papers indicating the first preference in favour of the first respondent which did not contain the figure I  in the space intended for marking the said figure had been wrongly accepted
In support of the first contention it was argued that 1 the expression article supplied for the purpose used in Rule 39A2b and Rule 732e of the Conduct of Election Rules 1961 was misconstrued by the High Court 2 in the context of the election law the instructions contained in the hand books and the procedure followed in respect of the election to Lok Sabha and State Assemblies the expression article supplied for the pur pose should be interpreted as meaning actually given or handed over and as such the ball point pen for marking the preference should have been personally handed over to the voter with instructions to use it for marking his pref erence 3 the mistake in the present case namely marking 768 of the preference with green ink on the ballot paper had occurred because no bail point pen was handed over to the voter concerned and 4 the fundamental rule of election law is that effect should be given to the intention of the voter and this could be done only by treating the vote as valid
Dismissing the appeal this Court HELD 1 There is a material difference between an election to Lok Sabha or a Legislative Assembly which is a direct election with one constituency for each seat and only the vote is to be cast and an election to Rajya Sabha which is an indirect election with the preferential system of voting
This difference has to be taken into account in interpreting the relevant words used in the Rules relating to an election
779D E 2 Rule 39A2b read with Rule 37A2a of the Conduct of Election Rules 1961 prescribes that at an elec tion in a council an elector in giving his vote shall place on his ballot paper the figure I  in the space opposite the name of the candidate for whom he wishes to vote in the first instance with the article supplied for the purpose
Further Rule 73 which is directly applicable to the count ing of votes at elections by Assembly Members prescribes that if on the ballot paper there is any figure marked otherwise than with the article supplied for the purpose the ballot paper shall be invalid
777H 778A D 3 The High Court was right in interpreting the expres sion article supplied for the purpose in Rule 39A2b and Rule 732e of the Election Rules as meaning made available for the purpose or provided for the purpose
 778E Ram Utar Singh Bhaduria vs Ram Gaopal Singh  Ors  distinguished
4 The difference in the case of an election to the Rajya Sabha makes it wholly unnecessary that the Presiding Officer or the Polling Officer should hand over to every votor individually a hall point pen to mark his vote and it is enough if the article for marking the preference namely bail point pen is provided to the voter to use the same for marking his preference or if the pen is placed in such a way as to make it clear that the marking of the preference is to be done with that pen and instructions given to use that pen for marking the preference
779H 780A B 5 It is not enough for the vote to be valid that it is possible 769 to gather the intention of the voter to vote for a particu lar candidate
When the law prescribes that the intention should be expressed in a particular manner it can be taken into account only if it is so expressed
777E G Hari Vishnu Kamath vs Syed Ahmad Ishaque  Ors   refterred to
6 Assuming that the voter in this case had expressed his intention clearly by marking the figure 1 in green ink he did so in violation of the express provisions of the Rules which have a statutory force and hence no effect can be given to that intention
778D 7 Clause a of sub rule 2 of Rule 37A only provides that the voter shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance
It is significant that this rule does not specifically say that the figure 1 must be placed in the column earmarked for marking the preference but only requires that the figure 1 should be placed oppo site the name of the candidate
781D E 8 In the case of the three first preference votes cast in favour of respondent No 1 the figure 1 was clearly marked opposite the name of respondent No 1 being the candidate concerned as required by the express provision of the said Rule 37A and the intention of the voter was clear ly to cast the first preference in favour of respondent No 1
782E section Sivaswami vs V Malaikannan  Ors   referred to