Andhra HC (Pre-Telangana)
K. Ramulu vs The Govt. Of Andhra Pradesh And Anr. on 20 September, 1974
JUDGMENT Chinnappa Reddy, J.
1. This case appears to us to illustrate the Telugu Expression (original in Telugu omitted) ("Nuclear weapon against a swallow) and the aphorism of Kahlil Gibran as rendered into Telugu by Dr. C. Narayana Reddy. (Original in Telugu omitted) ("why are there laws? To catch but small fish").
2. The petitioner is detained under Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act and he seeks a writ of Habeas Corpus to gain his liberty.
3. Under an authorisation issued by the Chief Rationing Officer, Hyderabad the petitioner has been doing the business of an 'Authorised Fair Price Shop'. His business consists of receiving supplies of rice, wheat and sugar from the Food Corporation of India on allotment by the Civil Supplies Department and distributing the same to card-holders. The shop is but a small shop and there are but six hundred card-holders. Every month on an average he receives and distributes about 70 quintals of rice, thirty quintals of wheat and thirty quintals of sugar. According to the counter he is allowed a margin of Rs. 7/- Rs. 6/- and Rs. 5.50 in every quintal of rice, sugar and wheat respectively. Even on that basis after making allowances for rent and other administrative charges he could not be making a profit of more than Rs. 400/- or Rs. 500/- per month. While so, on 1-8-1974, the Deputy Tahsildar and the Enquiry Inspector inspected the petitioner's shop and detected an excess of stock of 28 kgs. of wheat and 800 grams of sugar and deficit of 8 kgs. of rice. On scrutinising the registers it appeared as if about 201 card-holders had been issued Quantities of rice, wheat and sugar in excess of what they were entitled to get on the basis of their cards. The quantities so distributed in excess among 201 card-holders, according to the registers were 11 quintals 98 kgs. of rice. 7 quintals 19 kgs. of wheat and 3 quintals 80 kgs. of sugar. But a test check of six cards chosen at random showed that the card-holders were not sold anything in excess of what was due to them. Entries were made in the registers as if more had been given to them. Concluding that this was a device adopted by the petitioner to sell food-grains obtained from Government agencies to make undue profits thereby disrupting their normal supply to the public, the Commissioner of Police directed the detention of the petitioner with a view to prevent him from further acting in a manner prejudicial to the maintenance of supplies essential to the community.
4. We do not for a moment say that on the material before him, the conclusion, of the Commissioner of Police that the petitioner had adopted a device to sell foodgrains obtained from Government agencies for undue profit was not a legitimate conclusion. If there was nothing more, we would not perhaps, say that the detention is illegal merely because the fish is so small a fish for so large a net, though no doubt, it would leave us with the unhappy feeling that too drastic a use has been made of the Maintenance of Internal Security Act. But we have in this case another circumstance which appears to us to make the continued detention of the petitioner illegal,
5. The petitioner was arrested on 30-8-1974. The grounds of detention were served on 3-9-1974. But on 2-9-1974, the Chief Rationing Officer passed an order suspending the authorisation issued to the petitioner to run the Fair Price Shop and directing him to surrender all books and stocks to the Assistant Bationing Officer. By the same order the Assistant Rationing Officer was instructed to transfer the six hundred cards to other fair price shops. The effect of the order it to make the petitioner impotent as it were and to cut the ground under his feet. Even if he is not detained, he cannot any longer indulge in any activity prejudicial to the maintenance of supplies such as that for which he showed a proclivity according to the grounds of detention. The position of the petitioner is analogous to that of a person who is prone to violent activity such as would disturb the maintenance of public order but against whom no order of preventive detention is necessary if he is already in lawful custody, otherwise and there is no immediate prospect of release from such lawful custody. The learned Public Prosecutor argues that the petitioner's detention does not become illegal merely because his authorisation has been suspended. He urges that the past acts of the petitioner have revealed a tendency on the part of the petitioner to disrupt supplies essential to the commodity and that if he cannot do so by running a fair price shop, he may do so in some other manner. We are concerned with the concrete facts, situation and apprehension contemplated by the grounds of detention. We cannot allow our imagination to fly high and contemplates a situation and an apprehension not based on the facts mentioned in the grounds of detention and which could not have been present in the mind of the detaining authority.
6. The learned Public Prosecutor relies on the following observations of the Supreme Court in Rameshwar Shaw v. District Magistrate :
.... the past conduct or antecedent history of a person can be taken into account in making detention order and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
We do not read these observations as laying down that if tendency is shown detention is justified whether or not there Is scope or opportunity for future prejudicial activity, In the same case there are other relevant observations which we extract here:
As abstract proposition of law, there may not be any doubt that Section 3 (1) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period say for a month or two or so, and it is known that he would be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail; and if the authority is bona fide satisfied that such detention is necessary he can make a valid order of detention a few days before the person is likely to be released.
These observations are pertinent and instructive. They do show that the effectiveness of some other action which has already been taken in preventing future prejudicial activity is a relevant consideration in judging the legality of detention to prevent future prejudicial activity. The learned Public Prosecutor also relies on a decision of Sambasivarao and Ramachandra Raju, JJ., in W. P. 7832 of 1973, That was a ease in which the petitioner's authorisation had not been cancelled or suspended. The argument was that the petitioner could well be prevented from acting in a prejudicial manner by the cancellation of his authorisation instead of detention. The argument was repelled on several grounds. It was said that the fact that it was possible to take some other effective action would not make preventive detention illegal. More so, it was said when the authority competent to cancel the authorisation was different from the detaining authority. The learned Judges then observed:
Further, the Foodgrains control order requires that sufficient opportunity must be given to the licensee before steps in this behalf are taken. All that naturally takes time and would not in the meanwhile avoid the possibility of the detenu acting in a manner prejudicial to the maintenance of essential supplies.
Clearly the learned Judges were contemplating a situation where the authorisation continued to be in force and had not been cancelled or suspended. This is made further clear by the following later observation of the learned Judges:
We may also add that if and when the licence of the detenu is cancelled or suspended, the government may consider the desirability of further continuing the detenu in detention.
It goes without saying that the observations were not meant to exclude the jurisdiction of this Court to direct the release of a detenu in appropriate cases where the authorisation is cancelled or suspended before the Writ Petition is heard. As long ago as in 1953, it was pointed out by the Supreme Court in Ram Narayana Singh v. State of Delhi :
It has been held by this Court that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. The material date on the facts of this case is 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one.
7. The learned Public Prosecutor finally urges that the suspension of the authorisation is only pending enquiry end that it may be revoked. If and when the suspension is revoked, there is time enough for the detaining authority to consider the necessary future course of action. Before parting with the case we would like to emphasise that the provisions of the Maintenance of Internal Security Act are not punitive; they are merely designed to prevent the detenu from future prejudicial activity they are not even intended to deter others.
8. The writ petition is allowed.! The petitioner will be set at liberty forthwith; Advocate's fee Rs. 250/-.