Andhra HC (Pre-Telangana)
D. Kalavathi vs State Of Andhra Pradesh And Anr. on 20 November, 1986
Equivalent citations: AIR1987AP150, AIR 1987 ANDHRA PRADESH 150, (1987) 1 APLJ 121, (1987) 1 CRIMES 812, (1987) 1 ANDHLT 260, 1987 APLJ (CRI) 60, (1987) 1 APLJ 450, (1987) EFR 427
JUDGMENT K. Bhaskaran, C.J.
1. This Writ Petition under Art. 226 of the Constitution is by one Smt. Kalavathi for the issue of a writ of Habeas Corpus for setting at liberty her husband, Shivasari Gangadhar (hereinafter referred to as 'the detenu') who is undergoing detention pursuant to the order dt. 6-6-1986 passed under S. 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 by the second respondent the District Magistrate (District Collector), Adilabad. The gravamen of the charge against the detenue is that he is the registered owner of lorry bearing No. ATJ 3041, and that he had been transporting paddy from Adilabad District in this State to Dharmabad District in Maharashtra State by making use of that lorry, without any permit in that behalf, which act amounted to violation of Cl. 3 of the A.P. Paddy (Restriction on Movement) Order read with S. 7 of the Essential Commodities Act, 1955. In the operative portion of the grounds it is stated as follows :
"You, thus contravened the provisions of (a) Cl. 3 of A.P. Paddy (Restriction on Movement) Order, 1983, (b) Cl. 7 of A.P. Rice Procurement (Levy) Order, 1984 r/w S. 7 of the Essential Commodities Act, 1955."
When the matter came up before the Division Bench earlier, it was contended that though the facts alleged would amount to contravention of the provisions of Cl. 3 of A.P. Paddy (Restriction on Movement) Order, 1983 (for short, 'the Paddy Order'), they would not amount to a contravention of Cl. 7 of A.P Rice Order, 1984, (for short the 'Rice Order'); and therefore, one of the grounds alleged and relied on by the detaining authority was non-existent and irrelevant; and therefore, the detention order was illegal and was bound to be set aside. To press this point, the counsel for the petitioner had placed reliance on the decision of the Supreme Court in Dwarika Prasad v. State of Bihar, , wherein it was held that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority was non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons were good and did not suffer from any such infirmity, because it could never be predicated as to whether the detention order would have been made at all even in the absence of non-existent or irrelevant grounds.
2. On behalf of the respondents, the learned Advocate General had drawn the attention of the Division Bench to a recent Division Bench ruling of this Court (which appears to have been so far not reported) in W.P. Nos. 13033 and 13037/85, dt. 11-12-1985, wherein it was held "
"Merely because a repealed Order is mentioned in the order of detention, it cannot be said that the order of detention is vitiated or becomes void. No decision has been brought to our notice in support of the said proposition. We also do not think that the addition of a repealed Order has, in any manner, disabled the detenu from making a representation or to put forward his case."
3-4. In view of the fact that there appeared to be an apparent conflict between the decision of the Supreme Court, on the one hand, and the decision of our Division Bench, on the other, and considering the importance of the question of law involved, the Division Bench has referred the matter to a Full Bench; and thus it is before us now. The short facts are :
The Second respondent received a letter dt. 13-5-1986 from the Additional Superintendent of Police, Vigilance Cell, Civil Supplies Department, Nizamabad, containing a proposal that the detenu, who was acting in a manner prejudicial to the maintenance of supplies of commodities essential to the community by smuggling paddy from Andhra Pradesh to Maharashtra, had to be detained in order to prevent him from carrying on such activities. The second respondent considered the proposal carefully with reference to the material that was placed before him and having satisfied himself that it was necessary to detain detenu under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, passed the impugned order of detention. The order was executed by the Inspector Vigilance on 10-6-1986. The detenu was lodged in the District Jail, Secunderabad on 12-6-1986. The grounds of detention together with all the annexures were served on the detenu on 12-6-86. The Government of Andhra Pradesh was informed of the passing of the detention order on 8-6-1986. The detention order was approved by the Government in G.O.Rt. No. 2458, General Administration Department, dt. 16-6-1986. As required under S. 3(4) of the Act, the Government of India also was informed of the detention. The matter was referred to the Advisory Board by the Government. The Advisory Board opined that there was sufficient cause for detention. The Government in G.O. Rt. No. 2985, General Administration (General-A) Department, dt. 22-7-1986, confirmed the detention order and directed the detenu to be continued in detention for the whole of the period of six months.
5. Before us, the repeated submission of the counsel for the petitioner was that when the detention order mentioned two grounds; and one of them was found to be non-existent or irrelevant; the detention order was invalid; and as such, it was liable to be set aside, for, it could not be sought to be justified or sustained on the surviving ground alone. If the facts were as stated by the counsel for the petitioner, there would not have been any difficulty for us to agree with his contention, as it is well settled by the pronouncements of the Supreme Court that the decision of the detaining authority is one based on his subjective satisfaction and if one of the grounds for the order is non-existent or irrelevant or is not available under the law, the entire detention order would fall since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence of non-existent or irrelevant ground. (Vide the decisions of the Supreme Court in Shibban Lal v. State of U.P., , Rameswar Lal v. State of Bihar, and Biram Chand v. State of U.P., . We however, notice that in the detention order dt. 6-6-1986 and in the grounds for detention which followed, only one ground is seen stated, that is, the detenu had been indulging in acts prejudicial to the maintenance of supplies of commodities essential to the community, namely smuggling paddy into Maharashtra State from Andhra Pradesh on twenty four occasions during the period from 6-12-1985 to 6-1-1986 by using his lorry bearing No. ATJ 3041 without any permits. In the opinion of the second respondent, who passed the order of detention dt. 6-6-1986, this act on the part of the detenu amounted to contravention of the provisions of Cl. 3 of the Paddy Order and Cl. 7 of the Rice Order read with S. 7 of the Essential Commodities Act, 1955. It is argued on behalf of the petitioner that the detaining authority was not correct in his opinion that the acts attributed to the detenu in the detention order were violative of Cl. 7 of the Rice Order, though they might amount to violation of Cl. 3 of the Paddy Order. According to the petitioner, the order of detention mentioned two provisions of law which have been violated by the detenu, and therefore, the order of detention was based on two grounds, one for the violation of Cl. 3 of the Paddy Order; and the other for violation of Cl. 7 of the Rice Order. The submission of the counsel for the petitioner is that as it was conceded by the respondents themselves that there was no violation of Cl. 7 of the Rice Order, one of the grounds had fallen to the ground, and therefore the whole order of detention had become invalid and was liable to be set aside. In other words, it proceeds on the assumption that the number of grounds on which the detention order is based would depend upon the number of provisions of law stated to have been violated by the acts attributed to the detenu. In our view, this is not the proper criterion to determine the number of the substance of the grounds mentioned in a detention order. What would constitute 'grounds of detention', according to us, are all the allegations of fact which have led to the passing of the order of detention. If this guiding principle is borne in mind, in this case, it could be found that there are no two grounds, but only one ground, namely the detenu was found to transport without a permit paddy from the districts in Andhra Pradesh to a neighbouring district across the border in the Maharashtra State. The subjective satisfaction of the second respondent is in relation to the aforesaid activity stated to have been indulged in by the detenu. It is not disputed that the said activity on the part of the detenu would squarely fall within the ambit of Cl. 3 of the Paddy Order. Merely for the reason that the detaining authority expressed the view that the said activity would also be violative of another provision of law, namely Cl. 7 of the Rice Order, what otherwise is one ground would not become two grounds; nor would the finding that the whole activity amounted to violation of Cl. 3 of the Paddy Order alone and that there was no violation of Cl. 7 of the Rice Order render the detention order as a nullity.
6. Now take Dwarika Prasad's case, relied on by the petitioner and referred to in the reference order. In that case, the petitioner was a dealer in high speed diesel oil holding a licence under the Bihar Motor Spirit and High Speed Diesel Oil Dealers' Licensing Order, 1966. It would appear that certain complaints were received against the petitioner from local truck owners that he was not supplying high speed diesel oil to them according to their requirements and even when he supplied a little, he made it a condition that they should also buy from him other commodities, such as grease, brake oil, filter oil etc., but so far as outside truck owners were concerned, he supplied them as much quantity of high speed diesel oil as they liked at prices higher than the controlled price. There were six grounds set out in the grounds of detention, and Ground No. 5 read as follows :
"That he supplied 762 litres of the said oil as per cash memos fully described in Schedule I annexed hereto without giving the names and addresses of the purchasers not only in contravention of Cl. 7 of the licence but the supply by the said cash memos were shown to fictitious persons."
The main ground on which the validity of the order of detention was challenged on behalf of the petitioner was that Ground No. 5 was misconceived, it betrayed total lack of application of mind on the part of the District Magistrate and that it vitiated the order of detention. It was pointed out by the petitioner, that though Clause (7) of the Licence issued to him under the Bihar Spirit and High Speed Diesel Oil Dealers' Licensing Order, 1966 provided that the names and addresses of the purchasers must be mentioned in the cash memos, an Order No. 12706/S.C., dt. 11th July, 1966 was issued by the State Government which dispensed with this requirement until further orders and it was, therefore, no longer necessary to set out the names and addresses of the purchasers in the cash memos issued to them; and the ground that the petitioner supplied 762 litres of high speed diesel oil under various cash memos without giving the names and addresses of the purchasers in contravention of Clause (7) of the Licence was, therefore, wholly unfounded.
7. We would note that Ground No. 5 in the Supreme Court case was a separate ground based on certain facts stated, distinct from other grounds, and it was not a separate ground carved out from the same set of facts, as is attempted to be made out in the present case, saying that it had been stated in the grounds of detention that the same set of facts amounted to violation of two provisions of law, whereas actually it amounted to violation of one among them only. We have already noticed the distinction between the facts in the present case and those of the case involved in the Supreme Court case. There, what was found to be irrelevant and non est was Ground No. 5, distinct and separate from the rest of the grounds, whereas in the present case, what is found fault with is the mention of an additional provision of law by the detaining authority, in the detention order under which the alleged activities of the detenu fell. The same reasoning holds good in regard to what has been stated by our Division Bench in the decision under reference.
8. We have not been shown any prejudice in the matter of his defence having been caused to the detenu by the addition of a provision of law, which also was stated to have been violated by him, over and above the provision of law which the detenu actually had violated by the acts (of commissions or omissions) attributed to him. In fact, there could not be any. It is not his case that he was not able to make an effective representation on account of the fact that the detention order stated that his activity also fell within the mischief of Cl. 7 of the Rice Order.
9. We have also been referred by the counsel for the petitioner to the decision of the Supreme Court in Mohd. Yousuf v. State of J. & K., , in support of his contention that the ground pertaining to the violation of the provisions of a clause under the Rice Order was irrelevant, when it had no connection with the satisfaction of the authority making the order of detention under the law. It was also submitted that it was not permissible to dissect or trisect the grounds of detention into introduction, background and 'grounds' as such.
10. On the facts and in the circumstances of the case, we are afraid, the petitioner is not entitled to derive any support from the principle laid down and observations made by the Supreme Court in Mohd. Yousuf's case (supra). For the same reason, we do not consider it necessary to endeavour to find out to what extent, if at all, the Supreme Court has deviated as contended for by the respondents, in a subsequent decision in Dhananjoy Das v. District Magistrate, in regard to having an introductory para in the grounds of detention.
11. Lastly, it was contended on behalf of the writ petitioner that there was long and unexplained delay in the passing of the detention order; and that the alleged activities had neither the proximity nor the nexus to the order passed. We do not feel persuaded to accept this contention. For one thing, there is absolutely nothing on record to show that before the letter 13-5-1986 from the Additional Superintendent of Police, Vigilance, Nizamabad, the second respondent who passed the detention order had only (any?) information regarding the activities prejudicial to the maintenance of commodities essential to the community stated to have been indulged in by the detenu; for another thing, it has not been shown that the delay between 13-5-1986 on which date the second respondent received the proposal for action from the Additional Superintendent of Police and 6-6-1986 on which date the detention order was passed was either long or unexplained. We have gone through the file made available, and are satisfied that there had not been any long or unexplained delay in the passing of the order on the part of the detaining authority. Moreover, this was not a ground on which the detention order was challenged. Neither in his representation nor in the grounds urged in the writ petition, this was raised. This contention based on long or unexplained delay, being a mixed question of fact and law, the writ petitioner should not be allowed to spring a surprise on the respondents without raising it sufficiently early so as to enable them to rebut or explain the long and unexplained delay alleged. We have, therefore, no hesitation in rejecting this contention at this belated stage.
12. For the foregoing reasons, we dismiss the writ petition.
13. Petition dismissed.