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5. Shri Maheshwari placed reliance on various social media posts of the Chief Minister of the State wherein he expressed his opinion that the persons indulged in black marketing of Remedesivir injections are liable to be detained under the NSA Act. The order of detention passed by District Magistrate amounts to acting under dictate is the next contention of Shri Maheshwari. Thus, subjective satisfaction and element of application of mind was absent on the part of the District Magistrate. By taking assistance of (1975) 2 SCC 81 (Khudiram Das Vs. State of West Bengal & Ors.) and 2020 SCC Online Alld. (Dr. Kafeel Khan vs. State of U.P.) it is submitted that in a matter of this nature where fundamental rights and right of freedom of a citizen sought to be taken away, the authorities were required to act with utmost care and caution. Reliance is placed to 'Explanation' to sub-section (2) of Sec 3 of NSA Act. It is submitted that the SAN SOUMYA RANJAN DALAI Date: 2021.07.07 10:26:24 IST Explanation, in no uncertain terms, makes it clear that if somebody acted in a manner which is prejudicial to the maintenance of supplies and services essential to the community but such act falls within the ambit of The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Blackmarketing Act) such person cannot be detained under the NSA Act. To elaborate, it is submitted that Sec.3(29) of General Clauses Act talks about "Indian Laws" which is wide enough to include the The Essential Commodities Act, 1955 and also the blackmarketing Act. The "drug" is the first entry in the Schedule appended to The Essential Commodities Act, 1955. Thus, the detention under the NSA Act runs contrary to the aforesaid explanation. Lastly, Shri Maheshwari submits that a person already arrested can very well be detained under the NSA Act, but in order to detain him further, certain conditions are to be fulfilled which were considered by this Court in extenso in Yatindra Verma (supra). These conditions were not satisfied in the instant case. It was not mentioned that there is a likelihood of petitioner's indulging in the same activity or committing act of blackmarketing of Remedisivir injection again. For these cumulative reasons, the detention order is liable to be set aside.

7. So far question of "subjective satisfaction" and application of mind is concerned, learned A.A.G urged that the necessary ingredients on the basis of which NSA Act can be invoked were taken care of and SAN SOUMYA RANJAN DALAI Date: 2021.07.07 10:26:24 IST only thereafter impugned order was passed. By taking this Court to the FIR (Annexure R/2) and report of Superintendent of Police (Annexure R/7), it is contended that the action of petitioner in indulging in black marketing of Remedesivir became a threat to "public order". Indore, town of Madhya Pradesh had the highest number of Covid patients. There was severe scarcity of injections, oxygen, beds etc. The petitioner's act was detrimental to "public order" and, therefore, NSA Act was rightly invoked.

22. These examples are illustrative in nature and not exhaustive. An "explanation" may be added to include something within or to exclude something from the ambit of the main enactment or the connotation of some word occurring in it (See: Controller of Estate SAN SOUMYA RANJAN Duty, Gujarat Vs. Shri Kantilal Trikamlal AIR 1976 SC 1935). DALAI Date: 2021.07.07 10:26:24 IST Similarly a negative explanation which excludes certain types of category from the ambit of enactment may have the effect of showing that the category leaving aside the excepted types is included within it (See First Income Tax Officer, Salem Vs. Short Brothers (P) Ltd. AIR 1967 SC 81). Thus, the explanation in the instant case, has a limited impact on main provision i.e. sub-section (2) of Section 3 of NSA Act. It does not dilute or take away the right of detaining authority under the NSA Act regarding eventualities relating to maintenance of 'public order' or security of the State.

25. We find force in the argument of learned Additional Advocate General that blackmarketing of remedesivir creates a threat to "public order". We have taken this view recently in the case of Yatindra SAN SOUMYA RANJAN DALAI Date: 2021.07.07 10:26:24 IST Verma (supra) also. If 'public order' is breached or threatened, in order to maintain 'public order', NSA Act can very well be invoked. Thus, "explanation" appended to Sub-Section 2 of Section 3 of NSA Act will not exclude the operation of NSA Act in a case of this nature where 'public order' is breached, threatened and put to jeopardy.