Karnataka High Court
Leharibai vs The State Of Karnataka And Ors. on 8 September, 1980
Author: K. Jagannatha Shetty
Bench: K. Jagannatha Shetty
JUDGMENT Jagannatha Shetty, J.
1. This petition under Art. 226 of the Constitution for a writ in the nature of habeas corpus has been moved by the mother of a detenu called Chaganlal Rathod. He was detained at the Central Prison. Bangalore by an order made by the Commissioner of Police. Bangalore under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) called shortly as "the Act"). On 20th August, 1980, after hearing counsel for the petitioner and respondents on the merits of the matter, we quashed the order of detention. We now give our reasons in support of that order.
2. For immediate reference, we may set out hereunder the impugned order of detention :
"Whereas, I, B. N. Garudachar, Commissioner of Police, Bangalore City, am satisfied that with a view to preventing the person known as "Shri Chagganlal Rathod, S/o Saromal, now residing at No. 152, R.T. Street. Bangalore, from acting in any manner prejudicial to the maintenance of supply of commodities essential to the community, it is necessary to make an order directing him to be detained :
Now, therefore, in exercise of the powers conferred by Clause (b) of sub-section (2) of S. 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980). I hereby direct that the said Shri Chagganlal Rathod be detained in the Central Jail. Banglore.
Sd/-
(B. N. GARUDACHAR), Additional Inspector General of Police and Commissioner of Police, Bangalore. 5-8-1980".
This order was served on the detenu with the particulars of the grounds of detention to which we would refer, if necessary, a little later.
The order of detention was challenged primarily on the ground that there was a total non-application of the mind by the detaining authority respecting the activities alleged against the detenu. It was also contended that the order was void since the materials furnished to the detenu were either vague or insufficient affecting his right to make an effective representation against the order of detention.
3. In order to appreciate these contentions it will be necessary to have regard to the scope and object of the Act. The Act, by S. 3 empowers the authorities specified thereunder to detain any person upon the subjective satisfaction with a view to preventing such person from "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community". Explanation to S. 3 sets out the meaning of the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community." It means :
"(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in any commodity essential to the community; or
(b) dealing in any commodity -
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or
(ii) with respect to which provisions have been made in any such other law as referred to in Clause (a). with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of the Act or other law aforesaid."
Clause (a) refers to committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 etc., and Clause (b) refers to dealings in any essential commodity with a view to making a gain in any manner which may defeat the provisions of the Essential Commodities Act, etc. In other words Clause (a) generally refers to offences punishable under the Essential Commodities Act or other like law, while Clause (b) specifically covers the activities of black-marketing in essential commodities. The Act was thus intended for the prevention of these two evils. It is apparent from the preamble which provides :
"An Act to provide for detention in certain cases for the purpose of prevention of black-marketing and maintenance of supplies of commodities essential to the community and for matters connected therewith."
4. There was, however, some argument at the Bar on the scope and meaning to be given to the Explanation to Section 3; but we do not think that there is any difficulty in construing it or understanding the purpose for which it has been appended. The Supreme Court in Bengal Immunity Company Ltd. v. State of Bihar, has observed :
"An explanation appended to a section or clause gets incorporated into it, and becomes an integral part of it, and has no independent existence apart from it. There is, in the eye of law, only one enactment, of which both the section and the explanation are two inseparable parts. They move in a body if they move at all".
In Dattatraya Govind v. State of Maharashtra, it was again observed that the explanation to any section should not be treated as illustrative in character. Bhagwati, J., said at page 928 :
"This section, which seeks to treat the Explanation as illustrative in character, is clearly fallacious. It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. But ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention. It must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur. Therefore, even though the provision in question has been called an explanation, we must construe it according to its plain language and not on any a priori consideration."
If the matter is thus considered, the Explanation with which we are concerned is an integral part of S. 3. It was evidently intended to circumscribe the scope of the power conferred by S. 3, but for which, it might have taken within its fold every conceivable activity bearing, directly or indirectly, upon the maintenance of supplies of commodities essential to the community. For instance, sabotage of thransport, pilferage of stocks or even the strikes by workmen at the production or distribution level might have also attracted the provision. The Explanation while expressly limiting the operation of the said expression to the acts falling either under Clause (a) or Clause (b) impliedly excludes all other activities even if they may bear upon the supply of essential commodities.
5. It must be borne in mind that the Act confers an extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land. Any person could be detained on the mere subjective satisfaction of a designated authority. The satisfaction of an authority is all that the law speaks of and the sufficiency of the grounds or the adequacy of materials alleged against the detenu are not justiciable. The Courts, however, exhibit the greatest alertness and awareness though not aversion or hostility, in the matter of such a law in view of the constitutional pledge against deprivation of the liberty of a person except in accordance with the procedure established by law. We do not minimise the need for or the urgency of maintenance of supplies essential to the community. We are not unconscious of the fact that the disorder and disruption of supplies might endanger social security and stability. Anti-social activities may throw the distribution system into disarray. It might pose an imminent threat to social order. But as Mathew J., observed in Prabhu Dayal v. District Magistrate. Kamrup, :
"We do not pause to consider whether social security is more precious than personal liberty in the scale of values for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be the impact on the maintenance of supplies and services essential to the community, when a certain procedure in prescribed by the Constitution or the laws for depriving a citizen of his personal liberty we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears."
Hidyatullah, J., as he then was, in Rameshwar Lal v. State of Bihar tersely said :
"However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors. The very reason that the Courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others." "The Courts", as Lord Denning (The Discipline of Law by Lord Denning, Page 104.) remarked :-
"......... stand, as ever, between the executive and the subject alert as Lord Atkin said in a famous passage - 'alert to see that any coercive action is justified in law : See Liverside v. Anderson (1942 AC 206, 244). To which I would add, alert to see that a discretionary power is not exceeded or misused."
Reference may also be made to the observation of Shelat; J., in Kishori Mohan v. State of West Bengal . The learned Judge said :
"Since the power conferred under the Act places the personal liberty of persons in extreme peril against which persons are provided with a limited right of challenge, such a law has to be strictly construed. It is also necessary to see that the power conferred by such a law to be exercised with extreme care and scrupulously within the bounds laid down in such a law."
6. In the light of these principles, we may now consider whether the impugned order is in terms of Section 3 of the Act. The order recites that the Commissioner of Police was satisfied that it was necessary to detain Sri Chagganlal Rathod with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the community. The second paragraph of the order refers only to the provision of law by which the Commissioner was authorised to make an order of detention. It just refers to clause (b) of sub-section (2) of Section 3 of the Act. That is not the source of power in exercise of which an order of detention could be made. The order is also significantly silent as to whether the activities attributed to the detenu fell under one head and/or the other provided under the Explanation. The authority, if we may say so, has mechanically reproduced the language of Section 3(1). The question, therefore, is whether such an order could be sustained even though the full particulars of the activities of the detenu have been furnished to him.
7. Mr. Byra Reddy, Senior Advocate for the petitioner contended that the order of detention was in utter disregard of the mandate of the statute and was evidently made in a casual manner without considering the activities alleged against the detenu. Counsel traced the legislative history and background of parallel enactments, in particular, the Maintenance of Internal Security Act, 1971 and urged that the authority is required to indicate in his order whether the alleged activities of a detenu fall under clause (a) and/or clause (b) of the Explanation. But, learned Advocate-General on the other hand, strenuosly urged that having regard to the grounds of detention furnished to the detenu, it would be unnecessary to make a specific indication in the order as contended, since the alleged activities fall under both the clauses of the Explanation. Learned Advocate-General, however, fairly conceded that if a detention in a given case falls exclusively under one or the other clause and not both, it might then become necessary for the detaining authority to indicate in the order itself the appropriate head under which the activities of the detenu fell. The counsel relied upon certain observations of the Supreme Court in Narendra v. B. B. Gujral in support of his contention. The detention order which was considered in that case made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Section 3(1) of the said Act provides for detention upon the satisfaction of specified authorities with a view, inter alia, to prevent a person from 'smuggling goods' or 'abetting the smuggling of goods.' The argument for the detenu noted by the Supreme Court was :
"25 .......... It was submitted that though the order for detention was made with a view to preventing the appellant from smuggling goods, i.e. under clause (i) of sub-section (1) of Section 3 of the Act, his case on the facts revealed in the grounds for detention clearly fell under Clause (ii) of sub-section (1) of Section 3, as he could not, by any stretch of imagination, be treated to be a smuggler but he was only an abettor. Maybe, he instigated, organised and facilitated the act of smuggling, but it is said, the acual smuggling of the contraband goods was by others .......".
Repelling the contention, it was held :
"..... We are afraid, the learned counsel is stretching the argument too fine.
xx xx xx xx ....... Though the provisions of Cls. (i) and (ii) of sub-section (1) of Section 3 of the Act may operate on different fields, which may sometimes, as here, overlap, still a wider meaning is given to the term 'smuggling' in Section 2(e) of the Act, with a view to broaden the scope of preventive detention. Sub-section (1) of Section 3 of the Act provides for the different grounds of detention. Clause (i) relates to smuggling of goods, clause (ii) relates to abetting the smuggling of goods, clause (iii) relates to engaging in transporting or concealing or keeping smuggled goods, clause (v) relates to harbouring persons engaged in smuggling goods, or in abetting the smuggling of goods. It must, therefore, be assumed that the intention of the legislature was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct, and both are separate grounds for detention, i.e., to take in all such activities which results in accomplishment of smuggling of contraband goods."
8. The Supreme Court although noticed a distinction between an act of smuggling and abetting the smuggling of goods under Section 3(1) of the said Act, nevertheless observed that the term "smuggling" having regard to the meaning under Section 2(39) of the Customs Act, 1962 is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling. Even on the basis of the allegations made against the detenu concerned in that case, it was held that he was engaged in the act of smuggling as rightly indicated in the order of detention.
We do not think that the observations in the above case would be useful to the case on hand. There is no dichotomy between clause (a) and clause (b) of the Explanation to Section 3(1) of the Act. Clause (b) no doubt covers blackmarketing but blackmarketing is also an offence punishable under the Essential Commodities Act which may as well fall under clause (a).
In Rameshwar Lal v. State of Bihar . The Supreme Court pointed out (At page 1493 of Cri LJ) :
"No doubt blackmarketing has at its base a shortening of supplies because blackmarket flourishes best when the availability of commodities is rendered difficult. It has a definite tendency to disrupt supplies when scarcity exists or scarcity is created artifically by boarding to attain illegitimate profits. Indulging in black-marketing is conduct which is prejudicial to the maintenance of supplies."
But at the same time, all acts or offences falling under clause (a) of the Explanation, may not necessarily amount to blackmarketing. The detaining authority, therefore, must, in each case, apply his mind to the activities alleged against the person and indicate in the order itself that it is necessary to detain him with a view to preventing him from committing the acts falling under one or the other or both the heads set out under the Explanation. If this is not done the inference that the authority has not applied his mind or was not firm or clear in his mind about the grounds of detention gets strengthened. The mechanical reproduction of the language of Section 3(1) is only a blind man's approach. Secondly, when the meaning of the said expression "prejudicial to the maintenance of supply of commodities essential to the community" is covered by two clauses under the Explanation, the detenu must be told specifically under which clause or clauses his grounds of detention fell. To put it in laconic words if a detention could be ordered for indulging in activity 'A' or 'B' the detenu must be told by expressly indicating in the order that he is detained with a view to preventing him from committing either 'A' or 'B'; or 'A' and 'B'. That is an indication of the application of mind.
9. Our view finds confirmation from the following observation of Shelat, J. in Kishori Mohan v. State of West Bengal :
"It is therefore clear that before the authority invokes its power under S. 3, it must be satisfied and must expressly say in its order that the alleged activities of the person concerned were such that they endangered or were likely to endanger either the security of the State or public order or both. If the activities are of such potentiality or impact so as to affect both of them, the conjunctive 'and' and not the disjunctive 'or' would be the appropriate word. There is, therefore, considerable force in the argument that the language in which the impugned order is couched demonstrates an element of casualness with which it was made."
This statement of law has been further amplified in Binod Bihari Mahato v. State of Bihar, wherein Bhagwati, J., said :
"If the detaining authority felt that it was necessary to detain the petitioner on the ground that his activities affected or were likely to affect both public order and the security of the State it would use the conjunctive 'and' and not the disjunctive 'or' in reciting its satisfaction. Where, however, the disjunctive 'or' is used instead of the conjunctive 'and', it would mean that the detaining authority was either not certain whether the alleged activities of the petitioner endangered public order or the security of the State, or it did not seriously apply its mind to the question whether such activities fell under one head or the other and merely reproduced mechanically the language of S. 3(1)(a)(ii). When such equivocal language is used and the detenu is not told whether his alleged activities set out in the grounds of detention fell under one head or the other or both, it would be difficult for him to make an adequate representation against the order of detention. If, therefore, it appears in the present case that the order of detention made by the District Magistrate was based on the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying on activities prejudicial to the maintenance of public order or the security of the State, it would have to be struck down as invalid."
Turning now to the case on hand, it seems to us that the impugned order falls short of the requisite standards of reassurance. The omission to advert with specificity to both the Clauses (a) and (b) of the Explanation renders the order susceptible to the complaint that it was made in a casual way and without proper application of the mind to the activities alleged against the detenu. The order of detention cannot, therefore, be held to be in conformity with the terms of S. 3 and the mandate of Art. 22(5) of the Constitution. The order, therefore, cannot be allowed to stand.
10. In the conclusion that we have reached, it is unnecessary to consider the other contention urged for the petitioner relating to the grounds of detention or the material particulars furnished to the detenu.
The earlier prayer made by the learned Advocate-General for certificate of fitness to appeal to the Supreme Court from our Order now requires to be considered.
In our opinion this case does not involve any substantial question or questions of law of general importance needing to be decided by the Supreme Court. The Certificate prayed for is, therefore, refused.
11. Petition allowed.