Allahabad High Court
Pradeep Kumar Gupta,Throu.His Brother ... vs State Of U.P.Throu.Prin.Secy.Home ... on 18 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1641
Author: Shabihul Hasnain
Bench: Shabihul Hasnain, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- HABEAS CORPUS No. - 35014 of 2018 Petitioner :- Pradeep Kumar Gupta,Throu.His Brother Balram Gupta Respondent :- State Of U.P.Throu.Prin.Secy.Home Lucknow And Ors. Counsel for Petitioner :- Rishad Murtaza,Anoop Kumar Upadhyay Counsel for Respondent :- Govt.Advocate,A.S.G.,Dinesh Kumar Tripathi Hon'ble Shabihul Hasnain,J.
Hon'ble Rajeev Singh,J.
Heard Shri Rishad Murtaza, learned counsel for the petitioner and the learned A.G.A. for the State.
This petition has been filed seeking the following main reliefs:
"i) Issue a writ, order or direction in the nature of Habeas Corpus directing the opposite parties to release the petitioner forthwith.
ii) Issue a writ, order or direction in the nature of Certiorari quashing the impugned detention order dated 18.6.2018 passed by the District Magistrate, Hardoi as approved by the State Government and extended by the State Government vide order dated 12.9.2018 detaining the petitioner under Section 3(3) of the National Security Act, 1980, contained in Annexure Nos. 1 & 2 respectively to this writ petition."
The aforesaid reliefs have been prayed on the basis of following main four grounds:
"1. The impugned detention order has been passed contrary to the provisions of Section 3(2) of the National Security Act, 1980.
2. Absence of cogent material indicating imminent release from jail and indicating that petitioner would indulge into prejudicial activity after release from jail.
3. Delay in passing the detention order.
4. Supply of illegible copies of documents."
Impugned order dated 18.06.2018 has been passed by the District Magistrate, Hardoi detaining the petitioner under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as ''NSA Act'). Contention of the learned counsel for the petitioner is that the impugned order has been passed on the ground that the petitioner/detenue had already been involved in a criminal case relating to black marketing of essential commodities, regarding which he was in jail under the provisions of Essential Commodities Act, 1955 (hereinafter referred to as ''E.C. Act'), and there are cogent material indicating imminent release from the jail and if he is released, he would indulge into prejudicial activity after release from jail.
Factual matrix of the case is that on the written complaint of one Sunil, District Supplies Officer, Hardoi, a First Information Report No. 60 of 2018 under Section 3/7 E.C. Act and Sections 409, 120B, I.P.C., P.S. Kotwali Dehat, District Hardoi was registered against the petitioner on 17th February, 2018. On the basis of the F.I.R., the petitioner was arrested and later on, charge sheet dated 14.05.2018 was filed in the matter. Thereafter, a report dated 13th June, 2018 was forwarded by Rakesh Chandra, In-charge Station House Officer, P.S. Kotwali Dehat, District Hardoi for invoking the provisions of NSA Act on the ground that the petitioner, who was in custody in pursuance to F.I.R. No. 60 of 2018, was trying to get bail. He had further reported that bail application of the petitioner was rejected by the Chief Judicial Magistrate as well as District and Sessions Judge, Hardoi, as a result of which, he filed bail application before the High Court after taking the legal aid from prominent lawyers and there is strong possibility that he would be released on bail and, in case, he releases on bail, then he may indulge in the criminal activities, disturbing the maintenance of supplies and services essential to the community. The aforesaid report of S.H.O. was forwarded by the Circle Officer, Hardoi on the same day to the Additional Superintendent of Police, East, Hardoi, who in turn, forwarded the same to the Superintendent of Police, Hardoi. On the same day, i.e., on 13th June, 2018, Superintendent of Police by forwarding the aforesaid letter of the Station House Officer to the District Magistrate, Hardoi, recommended for invoking the provisions of Section 3(2) of the NSA Act. Superintendent of Police, Hardoi, in his recommendation, also submitted that under the provisions of Notification No. II/15011/1/82-IS (DO-II), Ministry of Home Affairs, Government of India by which the types of supplies and services essential to the community were notified for the purpose of detention under sub-Section (2) of Section 3 of NSA Act, and categorically mentioned that the aforesaid Notification also includes the essential commodities distribution under the scheme of public distribution system by the fair price shop dealers. On the aforesaid recommendations, District Magistrate, Hardoi passed the impugned order dated 18.06.2018, which was approved by the State Government on 12th September, 2018. The detention order of the petitioner was extended from time to time.
Rebutting the impugned order, learned counsel for the petitioner while placing reliance on Explanation clause of Section 3(2) of the NSA Act, has submitted that the words "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the explanation to sub-section (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as ''Act No. 7 of 1980'). It is, thus, submitted that the aforesaid explanation clause mandates that no order of the preventive detention shall be made under the NSA Act on any ground on which an order of detention may be made under the Act No. 7 of 1980.
Section 3 (2) of the NSA Act along with Explanation, reads as under:
3. Power to make orders detaining certain persons.--(1) The Central Government or the State Government may,--
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or
(b) if satisfied with respect of any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.--For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the explanation to sub-section (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act."
Learned counsel for the petitioner further drew the attention of the Court towards Section 3(1) of Act No. 7 of 1980, which reads as under:
"3. Power to make orders detaining certain persons.--(1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.--For the purposes of this sub-section, the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" 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) ...... ...... ......."
In view of the above facts and situations, submission of the learned counsel for the petitioner is that District Magistrate did not consider the mandatory provisions of Section 3(2) of the NSA Act while passing the impugned detention order. The impugned order of detention had been passed solely on the ground of involvement of the detenue in a case relating to the E.C. Act for which First Information Report No. 60 of 2018 under Section 3/7 of E.C. Act and Sections 409/120B I.P.C., P.S. Kotwali Dehat, District Hardoi was registered on 17th February, 2018 and thereafter charge sheet was filed in the aforesaid criminal case on 14th May, 2018. The petitioner/detenue was arrested on 7th March, 2018 and was languishing in jail. He submitted that the District Magistrate exceeded his jurisdiction and did not apply his judicial mind while passing the detention order under the provisions of NSA Act. It is further submitted by the learned counsel for the petitioner that as the prejudicial activities mentioned in the grounds of detention are clearly covered under the provisions of Act No. 7 of 1980 and, thus, any order of preventive detention could only have been passed under the aforesaid Act and not under the provisions of the NSA Act. He also submitted that there is no any cogent material indicating imminent release from the jail or indicating that the petitioner would indulge into prejudicial activity after release from jail.
In support of his contention, learned counsel for the petitioner relies on the judgment of a Constitutional Bench of the Hon'ble Supreme Court passed in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan & Anr., AIR 1964 SC 334 and Smt. Shashi Aggarwal Vs. State of U.P. & Ors., 1988 SCC (Cri.) 178. It is also submitted that in the present case, there is no cogent and relevant material necessitating for making of an order of preventive detention against the petitioner. Further also, neither there is any cogent material nor there are compelling reasons to establish that there is an imminent likelihood of the petitioner to release from jail or once the petitioner is released from jail, then he would indulge into prejudicial activities.
Next submission of the learned counsel for the petitioner is that the alleged prejudicial activity relating to the offence under the E.C. Act took place on 15th February, 2018, but the impugned detention order under the NSA Act had been passed after an inordinate delay of four months, i.e., on 18.06.2018, which is unreasonable and the unexplained delay between the date of incident and date of passing the detention order only leads to an inference that there is no nexus between the incident and the order of punitive detention. Learned counsel for the petitioner also relies on the judgment of Hon'ble Supreme Court in the case of Sama Aruna Vs. State of Telangana & Anr., (2018) 3 SCC (Cri.) 441. Last argument advanced by the learned counsel for the petitioner is that the copies of the documents provided to him were not legible, which amounts to denial of right for making an effective representation.
Learned A.G.A., on the other hand, submitted that there is no illegality in the impugned order and submitted that that detenue was an accused in the F.I.R. No. 60 of 2018 (supra) and the detention order dated 18.06.2018 was passed against the petitioner as also his family members, who were involved in black marketing of foodgrains to be supplied through public distribution system. When some people complained about this, the premises of rice mill was raided on 15th February, 2018 and huge amount of foodgrains, which were to be supplied under the public distribution system, was recovered. Learned A.G.A. also submitted that the detenue cheated the poor people and created hindrance in supply of essential commodities, which is clear violation of Section 3 of the E.C. Act. In support of his contention, learned A.G.A. relies upon para 66 of the judgment passed by the Hon'ble Supreme Court in the case of A.K. Roy Vs. Union of India & Ors., (1982) 1 SCC 271. The said para reads as under:
"66. Insofar as "services essential to the community" are concerned, they are not covered by the Explanation to Section 3(2) of the Act. But in regard to them also, in the absence of a proper definition or a fuller description of that term or a prior enumeration of such services, it will be difficult for any person to know with reasonable certitude as to which services are considered by the detaining authority as essential to the community. The essentiality of services varies from time to time, depending upon the circumstances existing at any given time. There are, undoubtedly, some services like water, electricity, posts and telegraph, hospitals, railways, ports and road and air transport which are essential to the community at all times but, people have to be forewarned if new categories are to be added to the list of services which are commonly accepted as being essential to the community."
The relevant part of Section 3 of E.C. Act is reproduced as under:
"3. Powers to control production, supply, distribution, etc., of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide--
(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity;
(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops;
(c) for controlling the price at which any essential commodity may be bought or sold;
(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,--
(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or
(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation 1.--An order made under this clause in relation to foodgrains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers.
Explanation 2.--For the purpose of this clause, "production" with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar;
Uttar Pradesh.--(1) Clause (f) as substituted by U.P. Acts Nos. 18 of 1975 and 39 of 1975 omitted by U.P. Act 16 of 1978 (w.e.f. 2-9-1976).
(2) After Explanation 1, the following Explanation 1-A be inserted vide U.P. Act 16 of 1978, S. 3 (27-2-1978):
"Explanation 1-A.--An order made under this clause in relation to rice may, having regard to the milling capacity of a rice mill, fix the quantity to be sold by the licensed miller and may also fix or provide for the fixation of such quantity on a graded basis."
(3) Also a new clause (ff) as below was added by S. 2 of U.P. Act 9 of 1974--
"(ff) for preventing the hoarding of any essential commodity."
(g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs which, in the opinion of the authority making the order, are, or, if unregulated, are likely to be, detrimental to the public interest;
(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(i) for requiring persons engaged in the production, supply or distribution of, or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order;
(ii) for the grant or issue of licences, permits or other documents the charging of fees therefor, the deposit of such sum, if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such conditions, and the adjudication of such forfeiture by such authority as may be specified in the order;]
(j) for any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals, and the seizure by a person authorised to make such entry, search or examination,-
(i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be, committed and any packages, coverings or receptacles in which such articles are found;
(ii) of any aircraft, vessel, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicle or other conveyance or animal is liable to be forfeited under the provisions of this Act;
(iii) of any books of accounts and documents which in the opinion of such person, may be useful for, or relevant to, any proceeding under this Act and the person from whose custody such books of accounts or documents are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of an officer having the custody of such books of accounts or documents."
Considering the facts and circumstances and the arguments advanced by the learned counsel for the parties, the first and foremost question, which arises for our consideration is the first ground raised by the learned counsel for the petitioner "whether the impugned detention order has been passed contrary to the provisions of Section 3(2) of the NSA Act?", as the ground of detention is that the detenue is involved in a criminal act relating to black marketing of the essential commodities, for which he was in jail under the offence of E.C. Act.
Vide Notification No. II/15011/1/82-IS (DO-II) dated 8th February, 1982, Government of India, Ministry of Home Affairs, notifies the types of supplies and services essential to the community for the purpose of invoking Section 3(2) of the NSA Act to detain the accused persons. The aforesaid Notification dated 08.02.1982 is being reproduced as under:
"Ministry of Home Affairs New Delhi, the 8th Feb., 1982 No.:II/15011/1/82-IS (DO-II) : Whereas in the judgment in the Writ petitions, namely (1) No. 5724 of 1980, A.K. Roy Vs. Union of India and A&R, (2) No. 5874 of 1980, Than Singh Vs. Union of India and A&R and (3) No. 5433 of 1980, Dr. Vasant Kumar Pandit Vs. Union of India, the Supreme Court has held that no person can be detained under sub-section (2) of section 3 of the National Security Act, 1980 (65 of 1980), with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless by a law or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately to the public;
Now, therefore, for the purpose of detention under sub-section (2) of section 3 of the National Security Act, 1980 (65 of 1980), the Central Government notifies the following supplies and services as supplies and services essential to the community, namely:-
(i) Any postal, telegraph or telephone service, including any service connected therewith;
(ii) any railway service or any transport service for the carriage of passengers or goods by air or any other transport service for the carriage of passengers or goods by land or water;
(iii) any service connected with the operation or maintenance of aerodromes, or with the operation, repair or maintenance of aircraft, or any service in the International ''Airports Authority of India constituted under Section 3 of the International Airports Authority Act, 1971 (43 of 1971);
(iv) any service in, or in connection with the working of any major port, including any service connected with the loading, unloading, movement or storage of goods in any such port;
(v) any service connected with the clearance of goods or passengers through the customs or with the prevention of smuggling;
(vi) any service in any establishment of, or connected with, the armed forces of the Union or in any other-establishments or installations connected with defence;
(vii) any service in any establishment or undertaking dealing with the production of goods required for any purpose connected with defence;
(viii) any service in any section of any industrial undertaking pertaining to a scheduled industry on the working of which the safety or such undertaking or the employees employed therein depends, Explanation- For the purposes of this sub-clause, the expressions "industrial undertaking" and "scheduled industry" shall have the meanings respectively assigned to them in clauses (d) and (i) of section 3 of the Industries (Development and Regulation) Act, 1951 (65 of 1951);
(ix) any service in, or in connection with, the working of any undertaking being an undertaking engaged in the purchase, procurement, storage, supply or distribution of foodgrains;
(x) any service in, or in connection with the working of, any system or public conservancy, sanitation or water supply, hospitals or dispensaries;
(xi) any service in connection with or in relation to banking;
(xii) any service in any establishment or undertaking dealing with the production supply or distribution of coal, power, steel or fertilizers;
(xiii) any service in any oilfield or refinery or in any establishment or undertaking dealing with the production, supply or distribution of petroleum and petroleum products;
(xiv) any service in any mint or security press;
(xv) any service in connection with elections to parliament or to the Legislatures of the States;
(xvi) any service in connection with the affairs of the Union, or a State not being a service specified in any of the foregoing categories;"
Interpreting Item No. (ix) of the aforesaid notification, Superintendent of Police, Hardoi vide his letter dated 13th June, 2018, mentioned that the said notification includes the black marketing of the essential commodities to be distributed under the scheme of public distribution system by the fair price shop dealers and, hence, recommended for detention under the provisions of Section 3(2) of the NSA Act, on the basis of which recommendation, the impugned order has been passed by the District Magistrate, Hardoi.
From a perusal of the Item No. (ix) of the said Notification, it is evident that for the purpose of detention under Section 3(2) of the NSA Act, Central Government while notifying the ''supplies and services' as ''supplies and services essential to the community' provides for any service in, or in connection with, the working of any undertaking being an undertaking engaged in purchase, procurement, storage, supply or distribution of foodgrains. However, after going through the contents of the provisions of Section 3 of the E.C. Act, it is found that the E.C. Act provides that for maintaining or increasing supplies of essential commodities or for securing their equitable distribution and availability at fair prices, Central Government may issue orders for regulating or prohibiting the production, supply and distribution of such essential commodities and trade and commerce therein. It is also evident from the record that the FIR was registered on 17th February, 2018 and after investigation, charge sheet dated 14th May, 2018 was filed by the Investigating Officer and the S.H.O. recommended for order of detention on 13th June, 2018. But, it is nowhere disclosed in the entire proceeding that the recovered foodgrains is of P.D. System and from which place, it was procured and how any service is or in connection with the working of any undertaking being engaged in purchase, procurement, storage, supply or distribution of foodgrains is disturbed, as it is necessary that the detaining authority had to consider and satisfy himself that how the Item No. (ix) of the Notification dated 08.02.1982 was being violated.
It is quite apparent that the offence levelled against the petitioner is related to black marketing of the essential commodities, which was to be supplied through public distribution system and, thus, the offence of the petitioner is covered under the provisions of the E.C. Act, and the Legislature, with the intention to deal with such circumstances, has promulgated Act No. 7 of 1980. Section 3(1) of the Act No. 7 of 1980 clearly provides that, in case, any person acts in any manner, prejudicial to the maintenance of supplies of commodities essential to the community, then such person may be detained under the provisions of the said Act.
In view of above facts and discussions, we are of the considered view that the District Magistrate, Hardoi has failed to consider the provisions of Section 3 of Act No. 7 of 1980, hence, illegally passed the impugned order dated 18.06.2018, contrary to the provisions of Section 3(2) of the NSA Act and the same is hereby set aside. Thus, the first question poses for consideration is answered in affirmative.
In view of the facts and situations as also the first ground of the petitioner having been succeeded to be allowed, there is no occasion to deal with the rest of the grounds raised.
Writ petition is, accordingly, allowed. Consequences shall follow.
September 18, 2019 VKS