Madhya Pradesh High Court
Kamal Khare vs The State Of Madhya Pradesh on 4 December, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav, Atul Sreedharan
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WP-22290-2019
THE HIGH COURT OF MADHYA PRADESH
(Division Bench)
Writ Petition No.22290/2019
Kamal Khare
versus
State of Madhya Pradesh and another
Shri Naman Nagrath, Senior Counsel with Shri Jubin Prasad,
Advocate for the petitioner.
Shri H.S. Chhabra, Government Advocate for the respondent/State.
CORAM :
Hon'ble Mr. Justice Sanjay Yadav, Judge
Hon'ble Mr. Justice Atul Sreedharan, Judge
ORDER
(Jabalpur, dated : 04.12.2019) Per : Sanjay Yadav, J :-
This habeas corpus petition is directed against the order dated 13.08.2019 passed by District Magistrate, Jabalpur/Respondent No.2 in exercise of his powers under Section 3(2) of the National Security Act, 1980 (for brevity, "1980 Act") whereby, the petitioner has been directed to be detained for a period of three months from the date of detention.
2. The order has been approved by the State Government under Section 3(4) of 1980 Act by order dated 05.09.2019. The detention 2 WP-22290-2019 order is passed on the ground that the petitioner who is involved in the business of retail sale of milk and milk products under the name and seal of "P.K. Pannerwala" situated at Village Oriya, Katangi Bypass, Tehsil Panagar District Jabalpur. On 10.07.2019 that, sample of cottage cheese (Paneer) was collected by the designated officer under the Food Safety and Standards Act, 2006 (referred as 'FSSA'). The sample was tested and found to be of sub-standard quality. That, an offence under Section 26(2)(ii) and Section 52 of FSSA was registered. The Health Officer vide communication dated 30.07.2019 informed the Superintendent of Police, Jabalpur regarding said adulteration for necessary action. The complaint was forwarded to the District Magistrate by the Superintendent of Police on 10.08.2019 whereon, the District Magistrate on the finding that the petitioner has indulged in large scale adulteration of cottage cheese with chemicals, passed the detention order on 13.08.2019 after satisfying that the activities in which the petitioner is indulged is prejudicial to maintenance of public order. The petitioner was taken into custody on 26.08.2019.
3. The findings recorded by the District Magistrate are :
^^13- vuqfoHkkxh; vf/kdkjh ,oa vfHkfgr vf/kdkjh [kk| lqj{kk iz'kklu ftyk tcyiqj ds izfrosnu dzekad@[kk| 2019@28 tcyiqj fnukad 30- 07-2019 dk lgi=ksa lfgr v/;;u fd;s tkus ,oa iqfyl v/kh{kd 3 WP-22290-2019 tcyiqj ds izfrosnu dz- tcy@jhMj@,u,l,@14@19 fn- 10-08-2019 dk ijh{k.k fd;k x;kA lacaf/kr vf/kdkfj;ksa }kjk izLrqr dFku esa vkids fo:) izLrqr rF;ksa ij fopkjksijkUr ;g Li"V gksrk gS fd vki dey [kjs firk eqUUkkyky [kjs }kjk 'kq) iuhj dk dgdj d``f=e feykoVh iuhj dsfedy feykdj voS/k :i ls rS;kj dj Hk.Mkj.k ,oa fcdzh dk voS/k O;olk; djus ij o"kZ 2018 esa rS;kj izdj.k l{ke U;k;ky; esa fopkjk/khu gS] blds ckn o"kZ 2019 esa vkidks mDr voS/k d``R; esa iqu% lafyIr fd;k tkuk Ikk;k x;k gS] o"kZ 2019 esa [kk| lqj{kk vf/kdkfj;ksa ds fujh{k.k esa vki ds }kjk vLoPN ifjfLFkfr;ksa LdhEM feYd ikmMj ike vkby fxYl jksy eksuksLVkj QysDl feYd dzhe vkfn vinzO;ksa ls iuhj fuekZ.k laxzg ,oa fodz; djrs ik;k x;k gS tkap ds le; ,df=r fd;s x;s uewus [kk| fo'ys"kd jkT; [kk| ijh{k.k iz;ksx'kkyk Hkksiky Hkstk x;k] eseksj.Me QkeZ 6 dh ,d dkWih vyx ls lhy ds feyku gsrq [kk| fo'ys"kd jkT; [kk| ijh{k.k iz;ksx'kkyk Hkksiky Hksth xbZ] uewuk dh tkap fjiksVZ dk;kZy; esa fn- 29-07-19 dks izkIr gqbZ] ijh{k.k fjiksVZ ds eqrkfcd fxYljhy eksuksa LVh;j ¶YksXl ds uewus dh vin``O; ds :i esa iqf"V gqbZ gS] vU; uewus tks mDr QSDVªh ls fy;s x;s Fks] buesa iuhj dk uewuk voekud ,oa ikevkbZy fLdEM feYM ikmMj] fxYljhy eksuksa LVh;j ¶YksXl ,oa dzhe ds uewus vin``O; ds :i esa ik;s x;s gSaA QyLo:i esjk ;g lek/kku gksrk gS fd vkids }kjk yksxksa dks /kks[kk nsdj mudh tku ds lkFk f[kyokM+ fd;k tk jgk gS] tks ekuo thou ds fy;s [krjukd gS] vkids fo:) iwoZ esa dh xbZ dk;Zokgh dk Hkh dksbZ fo'ks"k izHkko ugha gqvk gS vkSj vki viuh mDr fof/k fo:) O;kikfjd oLrqvksa dh feykoV laca/kh fofuekZ.k dks lrr tkjh j[ks gq;s gS] ftlls vke tu dk thou ladVkiUu gS vkSj vki dks fdlh Hkh dkuwuh dk;Zokgh dk dksbZ Hk; ugha jg x;k gS] bl izdkj vki lkekftd :i ls lH; lekt esa jgus ;ksX; ugha gSa] blhfy;s vki dh vkijkf/kd ,oa lekt fojks/kh xfrfof/k;ksa ij vadq'k yxkus vkSj vketu ds LokLF;@thou dks lqjf{kr j[kus rFkk yksd O;oLFkk cuk;s j[kus ij izfrdwy izHkko Mkyus okyh jhfr ls vki }kjk dk;Z djus ls ;k leqnk; ds fy;s vko';d iznk;ksa vkSj lsokvksa dks cuk;s j[kus ij izfrdwy izHkko Mkyus okyh jhfr ls dk;Z djus 4 WP-22290-2019 ls fuokfjr djus dh n``f"V ls vki ds fo:) jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3¼2½ ds rgr~ dk;Zokgh fd;k tkuk vko';d gSA 14- vr% jk"Vªh; lqj{kk vf/kfu;e ds rgr~ vki ds fo:) dk;Zokgh fd;k tkuk mfpr izrhr gksrk gSA QyLo:i vki ds fo:) fujks/kkns'k tkjh fd;k x;k gS] ftlls lacaf/kr mijksDr fujks/k ds vk/kkj ij vkt fnukad 13-08-2019 dks U;k;ky;hu ineqnzk o esjs gLrk{kj ls tkjh fd;s x;sA 15& vkidks fujks/kkns'k ds fo:) jkT; 'kklu] lfpo] x`g foHkkx] ftyk n.Mkf/kdkjh] ea=.kk cksMZ ,oa dsUnz 'kklu dks vH;kosnu djus dk vf/kdkj gS rFkk ea=.kk cksMZ ds le{k mifLFkr gksus dk vf/kdkj Hkh gSA vki viuk vH;kosnu v/kh{kd] dsUnzh; tsy tcyiqj ds ek/;e ls ;k lh/ks dk;kZy; ftyk n.Mkf/kdkjh tcyiqj esa v/kksgLrk{kjdrkZ vFkok izLrqrdkj dks oS/k izfrfuf/k ds ek/;e ls izLrqr dj ldrs gSaA
4. The order is being challenged on the ground that the petitioner was not afforded any opportunity of hearing and has not been served with the detention order. However, later, vide I.A. No.13100/2019, the petitioner has filed the detention order dated 13.08.2019 and the basis/grounds on which detention is made, brought on record, which as adverted supra, informs the petitioner of his right to represent before the State Government, Secretary, Home Department, District Magistrate, Advisory Board and the Central Government. That, challenge on the anvil of the decision in Rinku @ Kuldeep Shukla vs State of M.P. 2015 (3) MPLJ 157 i.e. at pre-execution stage has been given up, as the petitioner has been taken into custody on 26.08.2019.
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5. It is next contended that for the District Magistrate to be satisfied that the activities an incumbent is indulged must be substantiated on facts. In the case at hand, by placing reliance on the two test reports of Food Analyst of Paneer (loose), the sample whereof were taken on 12.07.2019 and 15.07.2019, it is urged that all the tests as regard to Starch, Sucrose, Urea/Det/Neut. were negative, meaning thereby, that there was no adulteration, nor the item was sub-standard as observed by the District Magistrate. Submissions though attractive; however, test reports which the petitioner had obtained under the Right to Information Act are in relation to the sample taken on 12.07.2019 and 15.07.2019. Whereas, the action taken against him was in relation to the sample taken on 10.07.2019. The District Magistrate in paragraph 8 of the grounds had taken note of the statement of one Shri Amreesh Dubey, Food Safety Officer, Jabalpur whose statement is reproduced for ready reference :
8& mijksDr ?kVukvksa] iqfyl v/kh{kd ds çfrosnu] [kk| lqj{kk vf/kdkfj;ksa ,oa Fkkuk çHkkjh ds dFku ntZ fd;s x;s gSA Jh vejh'k nqcs [kk| lqj{kk vf/kdkjh tcyiqj }kjk vius 'kiFk iwoZd dFku esa crk;k x;k gS fd **?kVuk fnukad 10@07@2019 dks eSa [kk| lqj{kk vf/kdkjh vejh'k nqcs [kk| lqj{kk ç'kklu ftyk tcyiqj lkFkh [kk| lqj{kk vf/kdkfj;ksa nsodh lksuokuh] e/kqjh feJk] eqdqan >kfj;k ,oa fouksn /kqosZ ds lkFk xzke vksfj;k dVaxh ckbikl fLFkr QSDVªh ikuhjokyk esa 'kke djhcu 4 cts vkSpd fujh{k.k gsrq igqapk] ekSds ij QSDVªh ds 6 WP-22290-2019 çHkkjh dks uke ,oa in ifjp; fn;k] iwNus ij çHkkjh us viuk uke dey [kjs firk Jh eqUuyky [kjs mez 38 lky fuoklh xzke vksfj;k dVaxh ckbikl Fkkuk iukxj ftyk tcyiqj crk;k x;k ,oa Lo;a dks QSDVªh dk çksijkbZVj gksuk crk;k] ekSds ij çfr"Bku esa vLoPNdj ifjfLFkfr;ksa esa Hkkjh xanxh ds chp vin``O;ksa] ikevkbZy fLdEM feYd ikmMj] fxYljhy eksuksa LVh;j ¶ysXl ,oa Øhe ls miHkksx gsrq iuhj dk fuekZ.k] laxzg ,oa foØ; djrs gq;s ik;k] ekSds ij esjs }kjk iuhj fuekZ.k esa ç;qDr gks jgs fxYljhy eksuksa LVh;j QysXl dk uewuk vin``O;k ds :i esa ysus dh bPNk foØsrk dey [kjs ls O;Dr dj bldh lwpuk QkeZ &5 , esa nsdj ikorh yh] [kqys cksjs esa laxzfgr fxYljhy eksuksa ,&¶ysXl dks lejl dj pkj lkQ lw[kh yh IykfLVkd esa 400&400 xzke dqy 1600 xzzke 1650 :- esa Ø; dj foØ; jlhn ekSds ij ik;s tkus ls foØ; jlhn Lo;a rS;kj dj mlesa foØrk dey [kjs ds gLrk{kj fy;k] Ø; vin``O; ds pkjksa ikWfyfFkuksa ds iSdsVksa ij jcj cS.M yxkdj ,;j VkbV can dj çR;sd Hkkx ij fu;e vuqlkj yscy yxkdj czkmu isij ls yisVdj fdukjs fpidkdj isij fLyi Ø- 63116 fu;ekuqlkj fpidkdj dey [kjs ds gLrk{kj uewuksa ij djok;s] rRi'pkr uewus ds çR;sd Hkkx dks nksgjs ,oa Økl esa yisVdj ,oa cka/kdj lhy o piMs dh lgk;rk ls pkj&pkj lhy yxkdj lhycan fd;k x;kA ekSds ij vin``O; ds 'ks"k ek+=k dks tIr dj foØsrk dey [kjs dh lqjf{kr vfHkj{kk es fn;k x;k] QSDVªh esa vLoPN ifjfLFkfr;ka gksus ,oa vin``O;ksa ls iuhj dk fuekZ.k gksrs ik;s tksus ls QSDVªh dks lhycan dj fn;k x;kA ?kVuk dk ekSdk iapukek cuk;k x;k] lgh gksus ij çksijkbZVj dey [kjs vkSj xokg us gLrk{kj fd;sA uewusa ds lHkh Hkkxksa dks dk;kZy; vfHkfgr vf/kdkjh esa tek fd;k x;kA tek uewuksa esa ls ,d Hkkx eseksjs.Me QkeZ 6 lfgr lhycan iSdsV es [kk| fo'ys"kd jkT; [kk| ijh{k.k ç;ksx'kkyk Hkksiky Hkstk x;k] eseksjs.Me QkeZ 6 dh ,d dkWih vyx ls lhy ds feyku gsrq [kk| fn'ys"kd jkT; [kk| ijh{k.k ç;ksx'kkyk Hkksiky Hksth xbZA mDr uewuk dh tkap fjiksVZ dk;kZy; esa fnukad 29-07-19 dks çkIr gqbZ ijh{k.k fjiksVZ ds eqrkfcd fxYljhy eksuksa LVh;j ¶ysXl dss uewus dh vin``O; ds :i esa iqf"V gqbZ 7 WP-22290-2019 gSA vU; uewuksa tks lkFkh [kk| lqj{kk vf/kdkfj;ksa }kjk mDr QSDVªh ls fy;s x;s Fks] buesa iuhj dk uewuk voekud ,oa ievkbZy fLdEM feYM ikmMj] fxYljhy eksuksa LVh;j ¶ysXl ,oa Øhe ds uewus vin``O; ds :i esa ik;s x;s gSA iwoZ esa Hkh fnukad 26-07-2018 dks vukosnd dey [kjs ds f=ewfrZuxj fLFkr nwljs çfr"Bku ls fy;k x;k iuhj dk uewuk voekud ik;k x;k Fkk] ftldk çdj.k U;k;ky; U;k; fu.kZ;u vf/kdkjh ,oa vij dysDVj ftyk tcyiqj ds U;k;ky; esa iathc) gSA vr,o vukosnd dey [kjs }kjk yxkrkj ,d o"kZ ls tcyiqj ftys esa voekud iuhj dk fuekZ.k ,oa foØ; fd;k tk jgk gS] ftlls tuLokLF; ij çfrdwy çHkko iM+ jgk gS rFkk yksxksa dh tku tksf[ke esa Mkydj voS/k dkjksckj ds tfj;s vkfFkZd ykHk vftZr djus esa yxk gqvk gSA vukosnd ds mDr voS/k dkjksckj ds dkj.k ftys dh yksd LokLF; ,oa tuLokLF; dks xaHkhj :i ls ladV gks jgk gSA vr% vukosnd dey [kjs fo:) jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3¼2½ ds rgr dk;Zokgh fd;k tkuk vko';d gSA**
6. The test reports, which the petitioner rely upon, nowhere show that the sample which were analysed are those taken on 10.07.2019. In view whereof, the petitioner fails to establish that the cogent material before the District Magistrate were not sufficient for forming an opinion that the petitioner has indulged in the activities prejudicial to maintenance of public order.
7. The next submission of the petitioner is based on the Division Bench judgment of this Court in Sudeep Jain vs State of Madhya Pradesh : Writ Petition No.21768/2019 decided on 08.11.2019. Relying on paragraphs 19, 20 and 21 of the order, it is submitted 8 WP-22290-2019 that the case of the petitioner since related to violation of the provisions of FSSA, provisions of National Security Act, 1980 are not applicable.
8. Having carefully gone through the judgment in Sudeep Jain (supra) that the co-ordinate Bench (one of us, Atul Sreedharan, J. was a member) in paragraphs 16, 17 and 18 deals with the factum of the case therein i.e. "the case against the Petitioner is that a source information was received on 14/08/19 that the Petitioner along with his brother was manufacturing adulterated ghee and mawa at his residence and selling it from his shop under the name and style of "Ganesh Milk Diary". The police raided the shop of the Petitioner and seized various articles and instruments used in the preparation of the offending food substance. In all, 155 Kgs of ghee, 8 Kgs of mawa, twenty-three bottles of sauce and thirty litres of kerosene oil amounting to Rs.72,400/- was seized, as per the averments made in the petition" and the non-application of mind by the District Magistrate to arrive at a subjective satisfaction as to the pre- condition for detention order under sub-section (2) of Section 3 of 1980 Act. However, in paragraphs 19, 20 and 21, it is held :
19. The District Magistrate failed to appreciate the principal of law that the general law shall not nullify the provisions of the special law as is enshrined in the 9 WP-22290-2019 maxim "generalia specialibus non derogant". Where there exists a special statute to deal with a particular situation, then the resort to preventive detention under the NSA (the general law) is uncalled for. Where the legislative wisdom reflected in a special statute like the FSSA does not provide for the imprisonment of a person whose act is at conflict with certain provisions of the FSSA, then subjecting such person to preventive detention under the NSA, for the same act, is not merely an abuse of process but a glaring instance of malicious exercise of executive discretion and the same has to be derided in the strongest terms. In this regard, the opinion of the Supreme Court is extremely relevant where it held "Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law.
No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal". 10
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20. The FSSA is a regulatory statute with certain penal provisions. Regulatory Statutes are laws that are made by the legislature to regulate the conduct of certain human activities. Such statutes may provide for certain penal provisions where the legislature in its wisdom, is of the opinion that certain acts need to be prevented and in order to ensure compliance, sanctions in the form of imprisonment may be provided. Actions which are violative of such special laws must be dealt with under the provisions of those laws. Action on the part of the State to deter the same by resorting to preventive detention, where the special statute does not even provide for imprisonment for the said act is deplorable and worthy of derision in the strongest terms. It would also be an instance of the executive exceeding the will of the legislature and such resort to preventive detention, gravely impinges upon the fundamental right to life itself of a person so proceeded against. Where the State resorts to proceedings under the NSA against individuals, whose actions are violations under regulatory statutes, and whose liberty is infringed by the State and its functionaries by a perverse and contorted interpretation of the phrase "public order", the same shall attract severe indictment of the State and the officers responsible for such malicious exercise of executive discretion.
21. In the present case, the reasoning given by the District Magistrate for arriving at the opinion that the 11 WP-22290-2019 Petitioner is a threat to public order, only because the sample of ghee and mawa seized tested out to be sub- standard, is ludicrous and downright preposterous, a result of contorted reasoning. Thus, the impugned order passed by the District Magistrate is violative of the fundamental right of the Petitioner under Article 21 of the Constitution and has resulted in the illegal detention of the Petitioner and so, the same is quashed. However, as the Petitioner has not made a prayer for the award of deterrent compensation, no such order is being passed. However, the Court preserves the right of the Petitioner to approach the State or National Human Rights Commission for such relief if he so desires.
9. Close reading of paragraphs 19, 20 and 21 of the decision in Sudeep Jain (supra) suggests that where the offence is committed under a Regulatory Act, as the FSSA is said to be, which contains penalty clause, and even if it is prejudicial to the security of the State or to the maintenance of public order or to the maintenance of supplies and services essential to the community, no action under the National Security Act, 1980 is permissible.
10. In my humble opinion, it is too broad a proposition that where the offence is committed under a Regulatory Act, as the FSSA is said to be, which contains penalty clause, and even if it is prejudicial to the security of the State or to the maintenance of 12 WP-22290-2019 public order or to the maintenance of supplies and services essential to the community, no action under the National Security Act, 1980 is permissible.
11. The National Security Act, 1980 was enacted to provide for preventive detention in certain cases and for matters connected therewith. The statement of objects and reasons reflects the circumstances which prevailed upon the Parliament to enact the law. These were :
"In the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest and increasing tendency on the part of various interested parties to engineer agitation on different issues, it was considered necessary that the law and order situation in the country is tackled in a most determined and effective way. The anti-social and anti-national elements including secessionist, communal and pro-caste elements and also other elements who adversely influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes even hold the society to ransom.
Considering the complexity and nature of the problems, particularly in respect of defence, security, public order and services essential to the community, it is the considered view of the Government that the administration would be greatly handicapped in dealing effectively with the same in the absence of powers of 13 WP-22290-2019 preventive detention. The National Security Ordinance, 1980, was, therefore, promulgated by the President on September 22, 1980.
Subject to a modification, the Bill seeks to replace the aforesaid ordinance. The modification relates to the composition of Advisory Boards and is for providing that the Chairman of an Advisory Board shall be a person who is, or has been, a Judge of a High Court and the other members of the Advisory Board may be persons who are, or have been, or are qualified to be appointed as Judges of a High Court."
12. In A.K. Roy vs Union of India AIR 1982 SC 710, it is observed :
"35. But, the liberty of the individual has to be subordinated, within reasonable bounds, to the good of the people. Therefore, acting in public interest, the Constituent Assembly made provisions in Entry 9 of List I and Entry 3 of List III, authorising the Parliament and the State legislatures by Article 246 to pass laws of preventive detention. These entries read thus:
Entry 9, List I:
"Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.'' Entry 3, List III:
"Preventive detention for reasons connected with the security of a State, the maintenance of public order, 14 WP-22290-2019 or the maintenance of supplies and services essential to the community; persons subjected to such detention."
The practical need and reality of the laws of preventive detention find concrete recognition in the provisions of Article 22 of the Constitution. Laws providing for preventive detention are expressly dealt with by that article and their scope appropriately defined. "The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.
If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited ...., it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions" (see The Queen v. Burah. The legislative power in respect of preventive detention is expressly limited to the specific purpose mentioned in Entry 9, List I and Entry 3, List III. It is evident that the power of preventive detention was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril. So long as a law of preventive detention operates within the general scope 15 WP-22290-2019 of the affirmative words used in the respective entries of the union and concurrent lists which give that power and so long as it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. Khanna J., in his judgment in the Habeas Corpus case has dwelt upon the need for preventive detention in public Interest.
...
37. In so far as our Constitution is concerned, an amendment was moved by Pandit Thakur Dass Bhargava to draft Article 15, which corresponds to Article 21 of the Constitution, for substituting the words "without due process of law" for the words "except according to procedure established by law". Many members spoke on that amendment on December 6, 1948, amongst whom were Shri K.M. Munshi, who was in favour of the amendment, and Sir Alladi Krishnaswamy Ayyar who, while explaining the view of the Drafting Committee, said that he was "still open to conviction". The discussion of the amendment was resumed by the Assembly on December 13, 1948 when, Dr. Ambedkar, who too had an open mind on the vexed question of 'due process', said:
"... I must confess that I am somewhat in a difficult position with regard to article 15 and the amendment moved by my friend Pandit Bhargava for the 16 WP-22290-2019 deletion of the words "procedure according to law" and the substitution of the words "due process".
xx xx xx xx "The question of "due process" raises, in my judgment, the question of the relationship between the legislature and the judiciary. in a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. .... The 'due process' clause, in my judgment, would give the judiciary the power to question the law made by, the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual. In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law, apart from the question of the powers of the legislature making the law. ... The question now raised by the introduction of the phrase 'due process' is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.
"... There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature 17 WP-22290-2019 packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is a rather a case where a man has to sail between Charybdis and Seylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes." (See Constituent Assembly Debates Vol. VII, pp. 999-1001).
The amendment was then put to vote and was negatived. In view of this background and in view of the fact that the Constitution, as originally conceived and enacted, recognizes preventive detention as a permissible means of abridging the liberties of the people, though subject to the limitations imposed by Part III, we must reject the contention that preventive detention is basically impermissible under the Indian Constitution."
13. In Ashok Kumar v Delhi Administration AIR 1982 SC 1143, it is held :
"13. The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law 18 WP-22290-2019 and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case.
14. Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. It is a matter of grave concern that in urbanised areas like cities and towns and particularly in the metropolitan city of Delhi the law and 19 WP-22290-2019 order situation is worsening everyday and the use of knives and firearms has given rise to a new violence. There is a constant struggle to control the criminal activities of the persons engaged in such organised crimes for the maintenance of public order. It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not able to substantiate. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose."
14. In State of U.P. v. Kishore Saini, AIR 1988 SC 208, it is held :
"12. Considering all these decisions, we have held in the case of Gulab Mehra v. State of U.P. AIR 1987 SC 2332 (judgment of this case was pronounced on September 15, 1987) that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order.20
WP-22290-2019 In the instant case, the criminal acts referred in the ground No. 1 are to the effect that on 4th June, 1985 at about 11 P.M. some persons informed the complainant that his brother has been shot by some persons and when complainant reached the spot he found his brother Vishnu Narain Awasthi Iying in the pool of blood and he had already died. Crime case No. 109 of 1985 under Section 302 I.P.C. was registered at Ghazipur Police Station. This incident is confined to individual persons and it is private crime as distinct from public crime. It does not in any way affect the even tempo of the life of the community nor does it affect the peace and tranquility of people of that particular locality where the crime has been committed. So far as the second crime referred to in ground No. 2 is concerned, it is to the effect that the complainant went to Lucknow Jail along with his son, Ram Kumar and son-in-law, Nand Kishore to see an accused in the District Jail. They could not meet the accused. Ram Kumar and Nand Kishore proceeded towards home in one rickshaw while the complainant was coming by another rickshaw. When they reached a little distance from the Jail near the residence of the Jail Superintendent at about 1.45 p.m. the detenus Rajiv Hazra and Kamal Kishore Saini along with another one Anandi Sukhla said to be the accomplice of one Ram Gopal, come on a scooter, stopped it and challenge Ram Kumar and Nand Kishore and the complainant. They fired at them. The 21 WP-22290-2019 complainant, Ram Kumar and Nand Kishore ran helter and skelter. The accused chased Ram Kumar and fired twice or thrice and in consequence of it Ram Kumar fell dead on the spot and Nand Kishore and the rickshaw- puller sustained injuries. On these basis crime case No. 222 of 1985 under Section 302/307 I.P.C. was registered on 13th June, 1985. This firing was made in a public street during the day time. This incident does affect public order as its reach and impact is to disturb public tranquility and it affects the even tempo of the life of the people in the locality where the incident is alleged to have occurred. Therefore, the finding of the High Court with regard to this incident that it did not disturb in any way the public order is not legal and valid."
15. An adulterated food article sold in public besides being offensive under the FSSA may or may not depending on the magnitudinal effect in the society lead to cause a law and order situation or disturb public peace and tranquility but it cannot be said that because the offence is covered by a Regulatory Act, National Security Act, 1980 has no applicability.
16. In view whereof, i am of the opinion that the issue i.e. where the offence is committed under Regulatory Act such as Food Safety and Standards Act, 2006 which contains penalty clause, under no circumstances, an action can be taken against a person whose 22 WP-22290-2019 activities are prejudicial to maintenance of public order under the National Security Act, 1980, deserves to be determined by a larger Bench.
17. Therefore, let the matter be placed before Hon'ble Chief Justice for constituting a larger Bench to decide the issue as to :
"Where the offence is committed under Regulatory Act such as Food Safety and Standards Act, 2006 which contains penalty clause, under no circumstances, an action can be taken against a person whose activities are prejudicial to maintenance of public order under the National Security Act, 1980"
(Sanjay Yadav) (Atul Sreedharan)
JUDGE JUDGE
vinod
Digitally signed by VINOD
VISHWAKARMA
Date: 2020.01.07 15:39:05 +05'30'