Madhya Pradesh High Court
Manikant Asati vs The State Of Madhya Pradesh on 13 July, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
1
The High Court of Madhya Pradesh Bench at Indore
Case Number W.P.No. 9846/2021
Parties Name Manikant Asati
Vs.
State of M.P. & Ors.
Date of Order 13/07/2021
Bench Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Judgment delivered Justice Sujoy Paul
by
Whether approved No
for reporting
Name of counsel for Shri Bhoopesh Tiwari, learned counsel for
parties petitioner.
Shri Vivek Dalal, learned Additional Advocate
General for respondents/ State.
ORDER
(13th July, 2021) This petition filed under Article 226 of the Constitution takes exception to the order dated 18/05/2021 (Annexure P/1) whereby District Magistrate, Jabalpur by invoking Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter called "the Blackmarketing Act") has detained the petitioner's brother Vivek Asati (hereinafter called "detenu") for his alleged involvement in blackmarketing of remedesivir injections during pandemic era.
2) In brief, the contention of learned counsel for petitioner is that detenu is a young boy of 24 years, who has recently completed his Graduation. He does not have any criminal record. The detention order came as a bolt from blue to the detenu, who was already arrested on 15/04/2021. Thus, on the date of passing of detention order, the 2 detenu was already in custody. He preferred an application under Section 439 of Cr.P.C. for grant of bail which was rejected by trial Court on 22/04/2021. Another application under Section 439 of Cr.P.C. was filed on 24/05/2021 before the High Court bearing MCRC No.25646/2021. Thus, on the date of passing of detention order, no bail application was pending consideration.
3) Shri Bhoopesh Tiwari, learned counsel for the petitioner submits that this is trite that for singular incident/conduct also the provisions of the Blackmarketing Act/NSA Act can be invoked and a person who is already arrested can still be detained under the Blackmarketing Act/any other detention law if three conditions are satisfied namely, i) the detaining authority has knowledge about his previous arrest, ii) the detaining authority considers that there is a possibility of detenue's getting bail and, iii) the possibility of his future involvement in same/similar kind of activity. The reliance is placed on the recent judgment passed by this Court in WP No.9792/2021 (Yatindra vs. State of MP & Ors.) which was based on a previous judgment of this Court in Kamini Yadav vs. State of M.P. & Ors. (W.P. No.25986/2018) and judgment of Supreme Court in (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.). Shri Tiwari submits that if principles laid down in aforesaid judgments are applied in the instant case, it will be clear that the detaining authority was very well aware about the previous arrest of the detenu. However, remaining two conditions are not satisfied. To elaborate, learned counsel for the petitioner submits that the letter/recommendation of SP nowhere shows that on the date of such recommendation, any bail application of detenu was pending. Thus, there was no material to reach to the conclusion that there exists a possibility of getting bail by the detenu. Similarly, there exists no material to show that the detenu can get involved in similar kind of activities. By placing heavy reliance on (1990) 1 SCC 291 (Anand 3 Prakash vs. State of UP & Ors.), (2009) 5 SCC 296 (Pooja Batra vs. Union of India & Ors.), learned counsel for the petitioner submits that subjective satisfaction of District Magistrate is not a satisfaction which can be beyond the scope of judicial review. Unless there exists a material on the basis of past record or otherwise showing that detenu can get involved in similar activity, the detention order is bad-in-law. In absence of any specific material in the instant case to show that detenu can continue to indulge in similar activity, the detention order is bad-in-law. By taking this Court to the detention order, it is submitted that order is totally founded upon the statement of the Station House Officer, Police Station-Madhotal and the learned District Magistrate has not recorded his own satisfaction on such statement. Resultantly, the impugned order is liable to be interfered with. For the same purpose, (2011) 2 MPLJ 277 (Sanjay Yadav & Anr. vs. State of Anr.) is also relied upon.
4) Per contra, Shri Vivek Dalal, learned Additional Advocate General supported the impugned order by contending that the activity of detenu in a Covid-19 pandemic was prejudicial to the "public order" and, therefore, no fault can be found in the order of detention. There is no flaw in the decision making process. He placed reliance on (1991) 1 SCC 128 (Kamarunnissa vs. Union of India & Ors.). Learned AAG submits that necessary parameters on the strength of which a detention order can be passed are available in the SP's recommendation and in the order of District Magistrate dated 12/05/2021.
5) Parties confined their arguments to the extent indicated above.
6) We have heard the parties at length and perused the record.
7) This Court considered the question of permissibility of detention of a person, who is already under arrest in extenso in Yatindra Verma (supra). The relevant portion reads as under:-
"29) In (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.) it was again held that while 4 detaining a person, who was already arrested, due care should be taken and it must be shown (i) regarding knowledge of detaining authority about detenu custody,
(ii) real possibility of detenu's released on bail and (iii) necessity of preventing him from indulging in activities prejudicial to the security of State maintenance of public order upon his release on bail."
8) Shri Tiwari, learned counsel for the petitioner rightly pointed out that three necessary ingredients needs to be satisfied for passing a detention order against a person who is already under arrest. The first requirement regarding knowledge of detaining authority about his arrest is admittedly satisfied as per contention of Shri Tiwari. Situation regarding two remaining conditions needs to be looked into. The condition remaining is possibility of grant of bail for the detenu. The whole argument of Shri Bhoopesh Tiwari is based on a fact that on the date when detention order was passed, no bail application was pending consideration before a Court of law. Merely because no bail application was pending on that day, it cannot be said that the likelihood of getting bail to the detenu in future was not there. Similarly, the question of producing any specific material in relation to an activity of this nature relatable with past does not arise in the peculiar facts and circumstances of this case. This pandemic related situation has arisen after more than 100 years (after the spanish flu which threatened the humanity in the year 1918). The entire civilization was facing an extreme crisis because of shortage of oxygen, medicines, injections, hospital beds and other facilities. In Yatindra Verma (supra), this Court poignantly held that for blackmarketing of remedesivir injection the "public order" is put to jeopardy and thus, Section 3 of the detention law can very well be invoked.
9) No doubt, ordinarily the Blackmarketing Act can be invoked when there is some material to show that the detenu has indulged in similar activities in past, but it cannot be forgotten that in the peculiar 5 factual matrix of this case, there was no question of availability of any past record of getting indulged in blackmarketing of remedesivir injection. Putting it differently, the demand of remedesivir injection arose because of the pandemic and, therefore, before pandemic, there could not have been any past record of petitioner related to blackmarketing of remedesivir injections or any such drug. This is trite that judgment of a Court should not be read as Euclid's Theorem. [See: Bharat Petroleum Corporation Ltd. Vs. N.R.Vairmani (2004) 8 SCC 579, C.Ronald Vs.UT Andaman & Nicobar Islands (2011) 12SCC 428, Deepak Bajaj Vs. State ofMaharashtra (2008) 16 SCC 14] Hence in the peculiar facts and circumstances of this case, the judgments cited by Shri Tiwari cannot be pressed into service.
10) In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd & Ors. (2003) 2 SCC 111, the Apex Court poignantly held that the precedential value of a judgment depends on the facts and circumstances of a case. One different fact may change the precedential value of a previous judgment. In this pandemic era, the era of extreme crisis one singular incident of indulging in blackmarketing, in our opinion is sufficient to invoke Blackmarketing Act and no fault can be found on this account in the order of detention.
11. The Apex Court in (1986) 4 SCC 407 (Rajkumar Singh vs. State of Bihar) opined as under:-
"Preventive detention as reiterated as hard law and must be applied with circumspection rationally, reasonably and on relevant materials. Hard and ugly facts make application of harsh laws imperative."
(Emphasis supplied)
12. Blackmarketing of a drug like remedesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for invoking Section 3 of Blackmarketing Act against the petitioner by District Magistrate.
613) A careful reading of impugned order of detention shows that the District Magistrate has considered the statement of concern SHO and thereafter recorded his satisfaction that the act of detenu has caused serious threat to the supplies of commodities to the community. The District Magistrate has taken into account the statement of SHO as well as the report of Superintendent of Police. The necessary ingredients for invoking Section 3 of Blackmarketing Act are, thus, satisfied. We are unable to hold that there is any such flaw in the decision making process which warrants interference by this Court.
14) So far contention of learned counsel for the petitioner that petitioner has been falsely implicated etc. is concerned, we are only inclined to observe that the proceeding under the Blackmarketing Act are preventive in nature and no punitive. Since FIR and criminal case is pending against the petitioner, we are not inclined to give any finding relating to the facts of the case. No fault could be established in the decision making process. Thus, we find no reason to interfere of this matter. Petition fails and is hereby dismissed.
(Sujoy Paul) (Anil Verma)
Judge Judge
vm/soumya
Digitally signed
by SOUMYA
RANJAN DALAI
Date: 2021.07.14
17:59:32 +05'30'