(1) This is an application by the detenu under S. 491 of the Criminal Procedure Code and Art 226 of the Constitution of India for setting aside the order of detention passed against him by the Commissioner of Police, Greater Bombay on 2nd November, 1965. The order states that the Commissioner was satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the life of the community. It is necessary to detain him in exercise of the powers under R. 30 (1) (b) of the Defence of India Rules. The petitioner has alleged as follows:
(2) He is a peace-loving young man of 25 years. He is a partner in the firm which is run under the name and style 'New Pioneer Medical Supply Co.' which carries on business in the purchase and sale of drugs in a shop situate on the Princess Street. The other partner of the firm is the petitioner's father who is an old man of 65 years. The petitioner says that he is a small dealer. The daily turnover of his business comes to about Rs. 500 or Rs. 600. The firm holds drug licence, poison licence, police licence, excise licence and municipal licence, which are all necessary to carry on the business of purchase and sale of drugs. The petitioner has asserted that he has an absolutely clean record and has not been adversely commented upon either by the police department or the Drug Controller or any other statutory authority. The petitioner then proceeds to give his own version as to what took place on 22nd October 1965 at about 7.30 p.m. which may be set out in his own words;
'The petitioner, his sister Thejaswi, one Vinodchandra, friend of the petitioner and a servant Devji by name were present in the petitioner's shop. The petitioner states that it was about closing time on that day and one customer came with a prescription and enquired whether the petitioner had for sale one ampoule of Hyalase injection. The petitioner told him that he did not have it. The petitioner also told him that the said Hyalase injection cannot be had now in India as the Import of the same is banned since the year 1962 and hence doctors do not prescribe the same nowadays. Then the said customer left the shop with the prescription in hand. shortly thereafter a C. I. D. Sub-Inspector (CB II) in mufti dragged the said customer inside the petitioner's shop by force and took out from his shirt pocket one ampoule of Hyalase injection which the customer when asked said that he purchased it from the petitioner at Rs. 40. The petitioner was pushed aside and ordered not to move a bit; the Inspector with 6-7 other persons took possession of the cash counter and counted the cash to about Rs. 2,000. The Inspector also declared that he got three ten rupee marked currency notes in cash counter. Thereafter the police Inspector along with assistance of Inspector of Drugs and other C. I. D. men accompanying him took thorough search of the entire shop till 11-00 p.m. but did not get any ampoule of Hyalase injection or any other incriminating items in the petitioner's shop nor did they find any vouchers or cash memos or even entries in the books of entries in respect of the said Hyalase Ampoule.'
(3) The petitioner has then narrated the events which transpired after the aforesaid incident. He says that he was taken by the Sub-Inspector along with his friend Vinodchandra, his sister Thejaswi and servant Devji to his office at about 3-30 a.m. in the same night. The petitioner and his friend Vinodchandra were released on bail of Rs. 2,000 each, and his sister and the servant were allowed after recording their statements and preparing a punchanama of the ampoule of Hyalase injection. The petitioner alleges that the said Sub-Inspector had come ready with his own panchas at the time of raiding the shop. On 27th October 1965, the petitioner themselves before the 23rd Presidency Magistrate's Court. Esplanade when the Inspector filed in the Court an application for remand of the accused to magisterial custody. The petitioner avers that he and Vinodchandra were charged under R. 125 (2) and (9) of the Defence of India Rules read with Drugs (Control of Prices) Order 1963. At paragraph 6 the petitioner has averred that the order of detention is fraud on the Defence of India Rules and gross abuse of the powers given by the Legislature, because even if the allegation against the petitioner, namely, that he sold a single ampoule of the drug at an exorbitant price, is accepted as true, it will not warrant the order of detention under R. 30 (1) (b) of the Defence of India Rules. He has further contended that detention for an indefinite period under the circumstances is too harsh, excessive and disproportionate to the alleged offence. He has then proceeded to say (paragraph 7) that ampoules of Hyalase injection are manufactured by Messrs. Bengers Ltd. of London and that the import of these ampoules has been banned in India since 1962. The petitioner, therefore, submits that banned articles cannot be regarded as essential to the life of the com community and it is therefore impossible that any act done by the petitioner would prejudice the maintenance of essential supplies. At paragraph 8 of the petitioner alleges that the proper course of action to be adopted by the respondents was to prosecute the petitioner under the specific statute i.e., the Drugs (Control of Prices) Order 1963 and not to use the emergency powers conferred by the Defence of India Rules. At paragraph 9 he has referred to S. 44 of the Defence of India Act and has stated that the respondents are bound by virtue of S. 44 of the Defence of India Act, 1962 to see that in exercising their powers under the said Act and/or the said Rules least interference would be caused to the petitioner's ordinary avocation of life and the enjoyment of his property . He has alleged that in issuing the said order under R. 30 (1) (b) of the Defence of India Rules, the respondents have not observed the provisions of S. 44. At paragraph 11 the petitioner has gone a step further and stated that the petitioner's arrest and detention is illegal, improper and without any legal basis as no offence against the petitioner is disclosed and the petitioner has only 'become the guinea pig for wide publicity against boarders and/or black marketers by the respondents. On 23rd October 1965 all the newspapers published the news of the petitioner's arrest under the Defence of India Rules and evidently the respondents 1 and 2 meant to warn the trading com community severely at the petitioner's cost in this way.'
(4) The Commissioner of Police has put in a detailed affidavit and denied that the daily turnover of the shop is Rs. 500 to 600 only. He has pointed out that the shop is situated in one of the busiest localities of Bombay. He has then stated 'On several occasions, irregularities in the working of his shop have been brought to the notice of the Drug Controller and explanations have been called for from the petitioner. In one case on the 17th September, 1964, the petitioner has been warned for contravention of the Drugs and Cosmetics Act 1940 and the Rules made thereunder' At paragraph 5, Commissioner of Police has set out his version as to the sequence of events which culminated in the raid of the petitioner's shop on 22nd October, 1965. The version runs thus:
'One Shri Manilal Damania is the Manager of Shri Wallabh Glass Works Ltd situated at Andheri-Kurla Road, Sakinaka, Bombay. One Madhusudan Anant Wadkar is in the service of the said company. Mrs. Pramodini Damania, the wife of aforesaid Manilal Damania gave birth to a male child on the 6th October 1965 in Vrandavan Hospital, Andheri. She and the child returned home on 14th October 1965. On 17th October 1965 Pramodini went back to the hospital with the child as the child was suffering from severe diarrhoea. The child was admitted in the hospital as it was in dehydrated condition. The condition of the child was somewhat serious. Dr. A. M. Desai prescribed glucose saline with an injection of Hyalase. the prescriptions were given to the father of the child Shri Manilal Damania. The ampoule of injection could not be obtained on that day. On 18-10-65, Damania asked Mr.Wadkar to purchase the medicine in the market and gave him Rs. 10 for the purpose on 18th Wadkar made enquiries with several chemists at Ghatkopar. Dadar and Giragum, but the medicine was not available. On the 19th, Wadkar went to the Princess Street and made enquiries there. He went to the shop of the petitioner and asked for Hyalase drug by showing the prescription note. The petitioner was present in the shop and he told Wadkar that he had one Ampoule of Hyalase which would cost him Rs. 40. He also told him that no bill or cash-memo would be given to him in token of purchase of the same. Wadkar tried to contact manilal on phone as he did not have sufficient money for purchasing the ampoule but Damania could not be contacted either at his residence or at his office. Wadkar therefore informed the sister of Damania about the availability of the injection ampoule for Rs. 40. On the 19th Mr. Damania obtained two ampoules of Rondose which is a substitute of Hyalase, but before this drug could be given to the child the child died. Thereafter Damania was able to secure two ampoules of Hyalase at the controlled price from elsewhere. Dr. Amul Desai who was informed of all these facts directed Wadkar to contact the Drugs Controller as in his opinion had the medicine Hyalase been obtained earlier the life of the child might have been saved. Dr. Desai felt that black-marketing in such drugs was a serious matter and must be reported to the Drugs Controller. The Drugs Controller directed Drugs Inspector Shri Patil to take Wadkar to the office of the Crime Branch, Drugs Control, C.I.D. This was on 22nd October 1965. The police then arranged a trap and gave Rs. 40 to Wadkar in marked currency notes and took him to the Princess Street where he was asked to purchase the drug from the petitioner's shop. Wadkar went to the petitioner's shop and purchased one ampoule for Rs. 40 and paid the price in the marked currency notes. Thereafter the shop was raided and searched and marked currency notes of Rs. 40 were found in the Galla of the shop. A panchanama was thereafter made and the petitioner was arrested along with some other persons and later released on bail. The bail was continued by the Magistrate on the next day and on the 29th October 1965; all these facts were reported by the Inspector of Police, Crime Bench (Drugs Control) C. I. D., Bombay to the Commissioner of Police.'
The commissioner of Police then says 'the entire record of the case was also placed before me. On a careful consideration of all this material, I was satisfied that it was necessary to detain the petitioner for the purposes mentioned in the order. Accordingly I passed the order of detention on the 2nd November 1965'. He has then denied the correctness of the version set out by the petitioner in his petition as to what happened on the 22nd October 1965. He had then pointed out that 'this drug (Hyalase) is being manufactured by a foreign company and was being imported by Messrs. Martin and Harris Pvt. Ltd. till 1963. Thereafter the drug is being manufactured by Benger Laboratories India Ltd. of Calcutta and Indian manufactured drug has been marketed since June 1965, though the stocks are not easily available as the production is not adequate' He has denied the petitioners' allegation that 'doctors do not prescribe the same (Hyalase) now a days'. At the end of paragraph 6, the Commissioner of Police says 'No other hyalase ampoule was found in the shop. It is true that no voucher or cash-memo or entry in the books of account relating to the sale of Hyalase ampoule was found'. At paragraph 8, he has denied that the order of detention is a fraud on the Defence of India Rules and a gross abuse of powers vested in him. He has also denied that the order of detention is too harsh, excessive and disproportionate to the act committed by the petitioner. He then proceeds to say 'I say that the petitioner has a flourishing shop at Princess Street. There are a large number of drugs which are essential to the life of the community. Some of them are in short supply and it is known that dealers in these drugs make excessive profits by selling these scarce drugs at black-market prices. If the petitioner had not been detained, he would have continued his black-market activity in drugs essential to the life of the community. The failure of the petitioner to sell Hyalase to Wadkar at the controlled price contributed to the death of Damania's child/ The activities of the petitioner, therefore, were highly prejudicial to the maintenance of supply of essential drugs to the community. On a careful consideration of all the facts I was satisfied that it was necessary to detain the petitioner for the purposes mentioned in the order'. In regard to the case made out by the petitioner on the basis of the provisions of S. 44, the Commissioner of Police says ' Any order of a lesser rigour would not prevent the petitioner from carrying on his prejudicial activities. It is known that these scarce drugs are kept in a secret place not known to the police and from there some shop-keepers obtain just the quantity asked for by the customer and they sell them at exorbitant price. This process could not have been prevented in the case of the petitioner except by an order of detention'. At paragraph 9 he has admitted that the import of the drug Hyalase has been banned since the year 1963, but that the production of the drug by Benger Laboratories Ltd., of London was started in Calcutta. The Commissioner has also referred to the controlled price of one ampoule of the drug which according to him is Rs. 3.09 nP. This is probably on the basis of the price lists published by Martin and Harris in 1962, 1963 and 1965. Under the provisions of the Drugs (Control of Prices Amendment Order) 1963 issued by the Government of India under sub-rule 8 and Clause E of sub rule 3 of R. 125 of the Defence of India Rules, 1962 no dealer was permitted to sell any drug to a consumer at a price exceeding the maximum retail price of that drug as shown in the price list (which the Commissioner says was effective on 1st April 1963) supplied to him. The dealer is also required to display retail prices of the articles under Cls. 2 and 3 of the Drugs (Display of Prices Order) 1962 which has been issued by the Central Government under sub-rule 2 of R. 125 of the Defence of India Rules 1962. Messrs. Martin and Harris Pvt. Ltd. are the distributors of this drug in India and they have been issuing price lists showing the retail price of this drug from time to time which has never exceeded Rs. 3.09 nP
(5) We were told that a prosecution was launched against the petitioner for breach of R. 125 (2) of the Defence of India Rules. On the day the trap was laid the police had released the petitioner and his companion on bail. On 27th October 1965 the bail was extended to 23rd November , 1965. In the meantime, i.e., on 2-11-65 the Commissioner of Police issued the order of detention, the validity of which has been impugned in these proceedings. It may also be mentioned that we were told at the close of the hearing this case that the Government have dropped the prosecution of the petitioner and that the petitioner has been ordered to be discharged.
(6) Mr. Chagla, the learned counsel on behalf of the petitioner, commenced his argument by conceding that he was prepared to proceed on the footing that the allegations contained in the affidavit submitted by the Police Commissioner are true. When it was mentioned that the prosecution was dropped and the petitioner had been ordered to be discharged Mr. Chagla argued that in view of the fact that the petitioner was detained only because he committed an offence under R. 125 (2) and further in view of the fact that the prosecution in respect of the same has been dropped, the Court must conmen to the conclusion that the order of detention is without any material and, therefore, invalid, and must be set aside. We will consider the effect of this argument at a later stage of this discussion. Mr. Chagla conceded that this Court cannot enter into the correctness or otherwise of the rival versions placed before the Court as it cannot enter into the disputed questions of fact. He was prepared to argue the matter on the basis of the correctness of the version put forward by the Police Commissioner. In our view, Mr.Chagla was right in the stand that he has taken. We would, therefore, proceed to consider his arguments on the basis that the version before us by the detaining authority is the correct version.
(7) Mr. chagla submitted three points for our consideration. Firstly he argued that the kind of black-marketing activity attributed to the petitioner would not be sufficient for invoking the powers of detention under R. 30 (1) (b) of the Defence of India Rules, firstly because banned goods cannot be considered as essential to the life of com community and secondly because, this is one small trivial incident and it is so trivial that it would not make any difference to the maintenance of supply one way or the other. Secondly he contended that there is no nexus between the order of detention and the object sought to be achieved namely, preventing the petitioner from carrying on activities prejudicial to the maintenance of supplies essential to the life of the community. He relied upon S. 44 of the Defence of India Act and argued that the provisions of S. 44 are mandatory in the sense that it is necessary for the detaining authority to keep those provisions in mind and modulate the order according to the requirements of the situation. He contended that the object of preventing the petitioner from indulging in similar activities could have been achieved by issuing a more restrictive order. such as for instance, as contemplated in Cls. (f), (g) and (h) of R. 30 (1) of the Defence of India Rules. Thirdly, he argued that the material which was before the detaining authority is also before the Court. It is, therefore, open to this Court to see whether the material is such as to form a basis for the satisfaction of a reasonable person.
(8) Before discussing the points urged before us, it would be necessary to consider what is the precise connotation of the expression 'maintenance of supplies essential to the life of the community'. The only object which has been mentioned in the order as having impelled the detaining authority to pass the order of detention is that the authority was satisfied that it was necessary to pass the said order with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the life of the community. Mr. Chagla contended that since the import of the drug was banned as far back as 1962, it is impossible to hold that the drug was treated munity. He further contended that the very fact that the import of the drug was banned goes to show that there was no possibility of keeping or maintaining the supply. He suggested that the supply must have already been depleted between 1962 and 1963 and therefore there was no question of maintaining the supply of the said drug. He also suggested that the word 'maintenance' has nothing to do with 'disposal' or 'sale' of the goods. It has stronger affinity with the idea of storing or preservation of the goods. According to him the responsibility for the maintenance of supplies can only rest with the producer or with the person who stores these goods either on a monopoly basis or on a large scale. We are unable to accept any one of these submissions. Whether a particular drug is essential to the life of the com community is to be judged on the merits and the efficacy of the drug. Dr. Desai prescribed the drug for an injection to the dehydrated child which shows that the drug must be of particular potency and value in that particular diseased condition. The essentially of a drug or other article is not to be judged with reference to the restrictions on the imports of such drugs or articles. The restriction on imports may have been due to various consideration. It may be due to the shortage of foreign exchange. It may as well be due to the need of encouraging indigenous production. It is also necessary to note that there are drugs which can take the place of the Hyalase drug. The Commissioner of Police has averred that Mr. Damania had obtained two ampoules of Rondose which is a substitute to Hyalase, but before this drug could be administered the child had already expired. This clearly shows that Hyalase is a drug of special utility in a particular disease and an alternative drug could be used in case it is found that Hyalase is not available. It also appears from the affidavit of the Commissioner that since June, 1965 Bengers Laboratories India Ltd. have started manufacturing Hyalase in Calcutta and these goods have entered the market from June 1965. At the same time he has pointed out that the stocks were not easily available as the production was not adequate. Turning to the argument that the action of a retail dealer in refusing to part with a drug except for a fabulous price would in no way affect the supply position., it is necessary to note that the word 'Maintenance' does not mean merely the storing of goods and keeping them intact. The maintenance of supplies is not an end in itself. The supply is to be maintained with the object that the article would be readily and easily available to the consumer. Availability to the consumer is an essential link in the chain of maintaining the supplies. It is not, therefore, correct to say that the position of maintenance would be affected only by an action taken by the producer or by the stockists. If the principle is that the drug should be available to the common consumer, it is obvious that it can reach the common consumer through a retailer. The action of the retailer, therefore, is of extreme significance and his action may be prejudicial to the maintenance of the supply of that particular drug. It is the duty of the retailer to sell the drug according to the price list published by the Government under the provisions of the Defence of India Rules. If he quotes a higher price and refuses to sell except for the price quoted by him he is virtually withholding the supply from the consumer. An action withholding the supply is bound to prejudice the maintenance of the supply.
(9) Mr. Chagla also argued that as the import has been banned since the year 1962 the supply of the drug, if at all, could be on a very meagre scale. He contended that in respect of an article whose import has been banned it is difficult to predicate the reasonable possibility of the maintenance of supply. It is however, necessary to note that in this case the doctor had not prescribed the imported drug. It does appear from the affidavit of the Commissioner that the drug is being manufactured in India at any rate since June 1965. It is idle for the petitioner to contend, as he has done in paragraph 3, that doctors do no prescribe the medicine recently as the import of the same has been banned since 1962. When Dr. Amul Desai prescribed the medicine he probably had in his mind the Indian manufactured Hyalase drug. It was not disputed by Mr. Chagla that the manufacture of this drug has been recently started in Calcutta. In fact he showed the price list published by Martin and harries Ltd. in 1965. It is significant to note that the price quoted for this drug still continues to be the same, i.e., Rs. 3.09 nP. All that Mr. Chagla suggested was that in all probability the drug had not yet reached the Bombay market at the relevant time. There is not much substance in the suggestion put forward by Mr. Chagla. Whatever that may be when Wadkar went to the petitioner on the 19th the petitioner demanded an exorbitant price of Rs. 40 for the ampoule whose cost is Rs. 3.09 nP.
(10) It is immaterial that the ampoule happened to be an item from imported stuff. Since an embargo has been put upon the import as far back as 1962, we can envisage two possibilities in which the petitioner might have procured the ampoule. The first possibility is that it may be out of the stock that was imported in 1962 and kept preserved by the petitioner. This will be the most charitable view to be taken about the petitioner's case. The second possibility is that this may be out of ampoules which have been smuggled into India and which have gone into black-market. At one stage Mr. Chagla contended that there was a likelihood of the petitioner having procured this ampoule from the black-market and we do not know what price he paid for the same. He had advanced this argument with a view to counter the plea that the price demanded by the petitioner was exorbitant and betrayed callousness on his part. This alternative argument would however paint the petitioner in darker colour. It is significant to note that the petitioner has not explained as to how he procured the ampoule. He has adopted a negative attitude on this point and by doing so he has denied himself the opportunity of explaining as to how he procured the ampoule. If the ampoule happens to be a part of the stuff legally imported into India before 1962 it was clearly the duty of the petitioner to offer it for sale according to the price mentioned in the price list. He had no business to demand an exorbitant sum of Rs. 40. On the other hand, if it is part of the smuggled stuff then evidently the petitioner has a hand in at least utilising the smuggled stuff. Considering the question from any point of view, we feel that by demanding an exorbitant price the petitioner has withheld the ampoule from Wadkar who badly needed it on medical advice. In our view, this again clearly affects the maintenance of supply which is essential to the community.
(11) Mr. Chagla then contended that this was a case where the detaining authority has found the petitioner indulging in black-marketing in one case that one instance should not be sufficient for creating a belief or satisfaction in the mind of the detaining authority that it was necessary to detain the petitioner with a view to preventing him from carrying on his activities prejudicial to the maintenance of the supplies essential to the community. If there is material before the detaining authority regarding the course of conduct of the detenu for a period of time then it will be about the likelihood of the petitioner repeating similar activities in future. The process of reasoning is obviously inductive that is drawing as inference from uncontradicted experience. That does not, however, mean that in no case will it be legitimate for the detaining authority to reach the conclusion that it was necessary in the interest of preventing the detenu from carrying on prejudicial activities to detain him. The instance in the present case is of an extremely glaring character and betrays callousness on the part of the petitioner. To be accurate there is not one instance but there are two instances so far as the facts as revealed in the affidavit of the detaining authority are concerned. Mr. Wadkar approached the petitioner on the 19th and asked for an ampoule of Hyalase injunction. At that time the petitioner demanded a price of Rs. 40 without which he was not prepared to part with the drug which was in his possession. Unfortunately Wadkar did not possess that much amount. He had gone with a sum of Rs. 10 with him nor did he have instructions to pay a higher price, particularly when the price was rising to the unimaginable range of Rs. 40. Wadkar returned and reported the matter to Manilal. It appears that it was thereafter that an attempt was made to secure a substitute drug but even before a substitute drug was available the patient had expired. We may mention that before reporting the matter to Manilal, Wadkar made enquiries with several chemists at Chatkopar, Dadar and Girgaum. This was on the 18th. It was only when Manilal approached Dr. Amul Desai and informed him about what had happened that he felt that the life of the child would have been saved had the drug been made available in time. It was at the suggestion of Dr. Desai that Manilal approached the Drugs Controller. The trap was laid on the 22nd October, 1965. But for the advice given by Dr. Desai probably the matter would not have reached the stage of the laying of the trap. On the 22nd when Warkar went a second time to the petitioner's shop, the petitioner repeated his demand of Rs. 40 . As on the previous occasion he refused to give him a cash memo or a bill. It will thus be seen that the demand of an exorbitant price was made twice. Again the petitioner refused to make a regular sale by issuing a cash-memo not only on one occasion but on two occasions. The fact that a highly exorbitant price was demanded shows that proclivity of the petitioner to cash in on the difficulties of the patients By quoting such a high price he virtually denied the supply of the medicine. It is well known that the major section of the Indian com community comprises of poor people who cannot afford to pay such exorbitant prices. The demanding of an exorbitant price is virtually withholding of an essential commodity from a large section of the community. Further the manner in which the petitioner had acted reveals a method. It appears clear that the petitioner was quite accustomed to the modus operandi in which black-marketing activities are conducted. It is equally clear that he has developed a cold callousness for the regard of the customers and their needs. At paragraph 3 the petitioner himself has admitted 'nor did they find any vouchers or cash memos or even entries in the books of entries in respect of the said Hyalase ampoule'. Of course this admission has been made with a view to emphasise the petitioner's case namely that this was a case of planting the article upon the petitioner and that as a matter of fact no sale had been taken place on that day nor any ampoule was found with the customer nor was it that the marked currency notes were found in the cash counter. On the point that no vouchers or cash memos were found in respect of the Hyalase ampoule there is unanimity between the petitioner's case and the case of the Police Commissioner. At paragraph 5 of Police Commissioner says 'It is true that no voucher or cash-memo or entry in the books of account relating to the sale of Hyalase ampoule was found'. Mr. Chagla repeatedly told us that the Police Commissioner has nowhere stated that the petitioner is a habitual black-marketeer. He referred to the following allegations at paragraph 4 of the Police Commissioner's affidavit:
'On several occasions, irregularities in the working of his shop have been brought to the notice of the Drug Controller and explanations have been called for from the petitioner. In one case on the 17th September, 1964, the Petitioner has been warned for contravention of the Drugs and Cosmetics Act 1940 and the Rules made thereunder.'
Mr. Chagla's argument was that all that the Police Commissioner has been able to allege against the petitioner is that there were certain irregularities found in respect of the transactions of the shop, and that there was only one case in which the petitioner was warned for contravention of the Drugs and Cosmetics Act and the Rules made thereunder. He has further pointed out that nowhere has the commissioner suggested that the petitioner or the firm had indulged in black-marketing activities. He, therefore, argued that it will not be proper to draw any inference about the black-marketing activities of the petitioner from the instance which culminated in the laying of the trap. It is true that the Police Commissioner has not specifically alleged that the petitioner was found to have indulged in black-marketing activities. Mr. Chagla pointed out that the accounts of the firm were seized on the day in question and must have been examined by the Police Commissioner and that the fact that the Police Commissioner has not come forward to make an allegation in respect of the black-marketing activities of the petitioner is indicative that there is nothing in the accounts of the shop or the other documents to show that the petitioner was indulging in black-marketing activities. It may be that the Police Commissioner has not come forward to make a positive assertion about the black-marketing activities because there was no material available to him, to support that conclusion. ON the other hand, this indicates that the Police Commissioner is fair and is not prepared to make allegations which are not supported or warranted from the record that was in his possession. At the same time, it is necessary to refer to certain allegations made by the Police Commissioner at paragraph 8 to the following effect:
'I say that the petitioner has a flourishing shop at Princess Street. There are a large number of drugs which are essential to the life of the community. Some of them are in short supply and it is known that dealers in these drugs make excessive profits by selling these scarce drugs at black-market prices. If the petitioner had not been detained, he would have continued his black-market activity in drugs essential to the life of the community.'
Again at a later stage at the end of that paragraph the Police Commissioner has said 'It is known that these scarce drugs are kept in a secret place not known to the Police and from there, some shopkeepers obtain just the quantity asked for by the customer and they sell them at exorbitant price. This process could not have been prevented in the case of the petitioner except by an order of detention'. Although apparently the allegations referred to above are of a general character, and refer to the usual modus operandi followed by black-marketers still the two sentences do indicate that there was reason for the detaining authority to fell that the petitioner must be indulging in black-marketing activities. Those sentences are 'If the petitioner had not been detained, he would have continued his black-market activity in drugs essential to the life of the community', and 'This process (the process of securing drugs from a secret place) could not have been prevented in the case of the petitioner except by an order of detention'. Black-marketing is quite a common phenomenon. The operations of the black-market are mysterious. Black-market real as it is, is still intangible. Its existence is always felt by the com community because of the impact it makes in the various aspects of the life of the community. It is impossible for any one indulging the Police Commissioner or any other governmental agency to point out a particular place as being the place where the operations in black-marketing go on. The black-market has neither a local habitation nor a name. It is an extremely intangible and invisible entity. It is impossible for the Police Commissioner to make a specific assertion that in the past the petitioner had indulged in the black-marketing. Obviously there are no documents which would leave the traces of the black-marketing transactions behind them. No cash memos are given and no entries are made in the account books. An honest police officer, therefore could not make any positive assertion that the petitioner has in the past indulged in black-marketing activities. It is true that no other ampoule was found in the shop except the one that was sold to Wadkar. That is again consistent with the suggestion put forward by the Police Commissioner that the drugs which have become scarce are kept stored at a convenient place and are taken out if and when they are required for sale. In view of the secret and mysterious operations in the black-market it is irrational to demand a number of the instances where these activities have been indulged in. We do not, therefore, accept the argument that this being a case of one instance or two instances it was not legitimate for the detaining authority o form the conclusion that it was necessary to detain him with a view to prevent him from indulging in activities which are evidently prejudicial to the maintenance of essential supplies.
(12) Mr. Chagla then contended that the action of detention could hardly achieve the object in view. He contended that if the object is to deter others from indulging in similar activities, then of course the detention would be justified. He pointed out, and in our view very rightly, that the object of detention is neither punitive nor deterrent. The object could only be to prevent the person concerned in indulging in prejudicial activities. In the same connection he pointed out that the detention of the petitioner would not prevent the other member of the firm or the servant of the firm from continuing their operation. The detention of the petitioner, therefore, according to him was self-defeating. In our view, this argument again is devoid of any substance. The argument assumes that it is not only the petitioner but his father who have been indulging in similar activities. The Police Commissioner has made no such sweeping and unwarranted assumption. He probably honestly feels that it is the petitioner who has been found to carry on black-marketing activities and that if he is prevented from indulging in such activities there would be an end to these prejudicial operations.
(13) Mr. Chagla repeatedly urged before us that this is a trivial case and can be explained on the ground of vagary on the part of the petitioner. We are not prepared to countenance the argument that this is a trivial case. The consequences of withholding an essential drug have serious implications. At times it may make a difference between life and death of the patient. Of course we are not suggesting that in this case the death of the child was due to the fact that the petitioner withheld the drug by quoting an exorbitant price. We are only suggesting the possibility that in a given case the difference may be be a difference between life and death. A drug or a particular variety of drugs are very much essential for the health of the community. Dr. Amul Desai has expressed the view that in all probability the life of the child might have been saved had the drug been made available at the proper time. It is, therefore impossible to view the action of the petitioner with equanimity or unconcern and dismiss it as a trivial instance or as a vagary. That the act is not the result of vagary is evidenced from the fact that on two occasions the petitioner quoted the same price, of course not knowing that if he did so on the second occasion he would be falling a prey to a trap. The whole operation pre-supposes a method and a definite plan. Had the petitioner been an honest dealer he would have come forward with a definite case that he obtained the drug from a particular source or that he procured it for a particular price.
(14) Mr. Chagla referred to the decision of the Division Bench comprising Mr. Justice Tarkunde and Mr. Justice Palekar in Criminal Appln. No. 1576 of 1955 (Bom). One of the grounds, which according to Mr. Chagla weighed with the Court in ordering the release of the detenu in that case was the triviality of the instance in question. We will presently examine the facts of that case and analyse the reasons which led to the decision. For the time being it is sufficient to note that there is a wide gap between the facts in that case and the facts in the present case.
(15) Before dealing with the aforesaid decision of the Division Bench it will be convenient to refer to another argument advanced by Mr. Chagla, because that argument also will have some relevance to the examination of the judgment of the Division Bench. The argument was that there is a case where the whole material that was before the detaining authority is also before the Court. Ordinarily the entire material that is available to the detaining authority is not available to the Court. The detaining authority is not bound to disclose the entire material that is in its possession, but when it so happends, i.e., when the same material comes into the possession of the Court, it is open to the Court to examine that material and see whether the action taken by the detaining authority if an action which any rational man would have taken in the circumstances of the case. In the same context we may refer to the arguments advanced by Mr. Chagla based on the provisions of S. 44 of the Defence of India Act. Section 44 is based on the principle which can be compendiously called the principle of least interference. Rule 30 (1) prescribes a number of actions which it is open to the detaining authority to have recourse to. There are eight clauses (a) to (h0 which detail the alternatives which are open to the detaining authority. Detention is only one amongst them. Mr. Chagla contended that when there is such a wide spectrum of choice given to the detaining authority it is the duty of the detaining authority to examine carefully the various alternatives and modulate its action according to the needs of the situation. He contended that if it is found that the action taken by the detaining authority is more excessive than what the situation demanded then it is open to the Court to interfere with the action taken.
(16) We will now propose to examine the decision of the Division Bench in Criminal Appln. No. 1576 of 1965 (Bom). The facts of that case were: The petitioner was a petty grocer doing business in that line for over a period of 25 years. The daily turn-over of his shop was not more than Rs. 25. The total value of the goods lying in his shop was not more than Rs. 400 and his monthly income did not exceed Rs. 100. The shop portion and the residential portion were located in parts of the same house. The detenu had not engaged any servant. He mostly attended to the business and when he retired for rest his wife looked after that business. On 29-9-65 a trap was laid and a bogus customer was sent to the shop of the detenu. The detenu sold one Kilo of imported rice for a sum of Rs. 2, the controlled price being Rs. 0.65 nP. In the course of the search it was found that the entire quantity of the imported rice in the shop was 1 1/2 kilos including the one kilo sold to the bogus customer. One of the contention raised by the petitioner in that case was that the rice which was kept in the shop was purchased by him on his own ration card. It was on these facts that a prosecution was launched against the detenu, and subsequently an order of detention was passed under R. 30 (1) (b) of the Defence of India Rules. The Police Commissioner did not counter the allegations made by the petitioner relating to the scale of his business. The Petitioner was not a licensee for a fair price shop. The learned Judges at the very commencement of the judgment stated 'On these averments it may be taken as established that the petitioner is a very petty retail dealer.' They have also pointed out that the Commissioner of Police did not claim that the petitioner was a habitual black-maeketeer. On the other hand, it was expressly stated in the Commissioner's affidavit that the information about the petitioner's black-market activities was received by the Controller of Foodgrains for the first time 'by the end of September 1965', that is to say about the time when the trap was laid which was done on the 29th of September 1965. The learned Judges have examined the modus operandi as to how the rice which was imported by the Government could find its place in the black-market, in some detail. In His additional affidavit the Police Commissioner explained the manner in which the imported rice could find its place in the black-market as follows;
'In or about 1957, the system of rationing was introduced in what is known as Fair Price Distribution Scheme . . . . . . . . . .By the introduction of the scheme, these imported foodgrains were sold to persons holding ration cards at a price fixed by the Government. A sale to any person not holding a ration card was not permissible and was penal. In the last month of 1964, the prices of foodgrains began to shoot up. At about the same time there came into circulation a large number of bogus ration cards and these cards were being used to divert rationed imported foodgrains to black-market with the result that many ration-card holders also were unable to get adequate ration. It was discovered that a large quantity of imported rice was finding its way to the black-market and the maintenance of supply of rice to people holding ration cards was becoming more and more difficult.. .. . . . '
It was in the background of this operation that the learned Judges felt that the action of detention against the detenu was futile and would not achieve the object of prevention of black-market activities. They pointed out that it was nowhere suggested that the detenu himself was involved in the activities of the holders of ghost ration cards. A number of persons were involved in the operation and the detenu had no part to play in those large scale operations. It is in the context of these facts that the learned Judges posed the question 'Could it then be said that the alleged activities of the petitioner were prejudicial to the maintenance of essential supplies in some indirect manner'?. They answered the question posed by them by saying 'In answering this question, the obvious test was whether the prejudicial activities of those who diverted foodgrains from the normal channels of distribution, by use of bogus ration cards or by giving short supplies to ration card-holders would be adversely affected by the detention of the petitioner and the stoppage of his personal activities. The answer to this question must necessarily be in the negative'. After making this observation the learned Judges hastened to observe: 'The position might possibly have been different if the petitioner were a large scale operator illegally procured food-grains. . . . . . . . The stoppage of activities of a petty dealer like the petitioner could not have been expected to exert any restrictive influence, on those who diverted foodgrains from the proper channels'. It was in the background of this fact that the learned Judges felt that there was no rational basis for supposing that the activities of the petitioner were prejudicial to the maintenance of supplies essential to the life of the community. Again at page 16 the learned Judges observed:
'The activities of a petty dealer like the petitioner could not possibly be regarded so potentially dangerous that it was necessary to subject him to preventive detention and that too without having him punished for the offence committed by him and without ascertaining whether his prejudicial activities persisted after he punishment.'
It is again the same context that the learned Judges felt that a less rigorous or a less restrictive order than the order of detention could have met the situation and since the extreme action was taken it appears on the face of it that the various alternatives listed in Rule 30 were not present to the mind of the detaining authority and if present were not properly considered. The learned Judges have repeated the same position in the following words:
'In the context of an order of detention passed under R. 30(1) of the Defence of India Rules, the provision of section 44 requires that the satisfaction of the detaining authority regarding the necessity of passing an order of detention must include his satisfaction that a less restrictive order would not suffice to meet the situation arising from the anticipated prejudicial activities of the proposed detenu. As observed by us before, it is clear from the admitted facts of the present case that the detention of the petitioner could not possibly have been helpful to the maintenance of supplies essential to the life of the community. Supposing any action had to be taken against the petitioner, apart from prosecuting him for the breach of the Imported Foodgrains (Prohibition of Unauthorised Sale) Order 1958, there was no reason whatever why the extreme strap of detaining the petitioner should have been adopted and why a more moderate order under R. 30 (1) (f), (g) or (h) would not have been quite sufficient to meet the situation. It seems to us clear that if the detaining authority had applied his mind to the circumstances of the case and the requirements of S. 44, he could not have rationally come to the conclusion that it was necessary to pass an order of detention against the petitioner. The impugned order of detention is wholly arbitrary and such an order cannot be held to comply even with the subjective standard by which compliance with S. 44 is to be judged.'
As pointed out above the present case cannot be treated as falling in the category of trivialities. We have already noticed the enormity of the consequences involved in the action taken by the petitioner. We have also adverted to the method which runs like a silver thread through the operations of the petitioner on two dates namely 19th and 22nd October 1965.
(17) Mr. Gumaste, the learned Government Pleader, contended that the decision taken by the Division bench in so far as they came to the conclusion that the provisions of S. 44 are mandatory stands in conflict with two earlier decisions of two Division Benches of this Court and, therefore, this was a fit case for reference to a wider Bench. After having read the judgment of the Division Bench carefully, we do not think that there is any vital conflict between the previous decisions and the decision of the Division bench referred to above. What the learned Judges of the Division bench have held is that the provisions of S. 44 are mandatory in the restricted or limited sense that those provisions must always be borne in mind by the authority. On the one hand so far as satisfaction of the detaining authority is concerned, the standard, is a subjective, that is to say standard which is not open to any scrutiny by the Court. On other hand, in view of the fact that various alternative courses are open to the detaining authority, it is not possible to hold that the scrutiny of the Court is completely excluded in considering whether the various alternatives have been kept in view in passing the order. If in a given case the Court comes to the conclusion that no rational man who has kept before his mind's eye the various alternatives, can possibly come to the conclusion that the detention is the only proper course, obviously the Court would not be powerless to strike down the action taken by the detaining authority. To that extent and to that extent only the provisions of S. 44 lay down a standard which is open for the scrutiny of the Court. This view finds support from certain observations of the Supreme Court in Godavari v. State of Maharashtra, : 1964CriLJ222 . Their Lordships observed:
'It is true that section 44 provides that there should be as little interference with the ordinary avocations of life as possible when orders are made under the Act or the Rules but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of R. 30 (1) and had come to the conclusion that the only way in which the purposes of the Act and the Rules could be carried out was by the use of C. (b) of R. 30 (1). In our opinion when the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that that was the only way which the State Government though was necessary to adopt in order to meet the situation. It will then be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to S. 44. No such thing has been shown in the present case and we are satisfied that the orders in question cannot be said to go beyond the needs of the situation, even assuming that S. 44 is mandatory as urged on behalf of the appellants and not merely directory as urged on behalf of the State.'
It is apparent from the above observations that there will be a residue of cases where it will be open to the detenu to show that the order has gone beyond the needs of the situation and it will therefore be contrary to S. 44. This implies that the Court has power to examine the plea if and when raised. We have used the expression 'residue of cases' advisedly be causes such a class of cases would not be legion. In the very nature of things it is not easy for the detenu to show that the order has gone beyond the needs of the situation. If it can be shown that the authority has not considered the provisions of S. 44 at all, then that would be a case of clear non-application of mind to the important provision of S. 44 of Defence of India Act. If there is anything on the face of the order to suggest that the action is in excess of the needs of the situation, then again the Court can intervene. Further if there is any material from which it could be shown that the action was far in excess of the requirements of the situation, then again the Court must step in. It is thus clear that there is an area where the action of the authority would be open to scrutiny and in such a case the Court can well ask the question whether any reasonable man who has before his mind's eye the provisions of S. 44 and who has applied his mind to those provisions could possibly come to the conclusion that it is this drastic action alone which the situation demands. We have anxiously considered the facts of this case and we do not feel that we can reach the conclusion that no rational man in the situation in which the Police Commissioner was placed would reach the conclusion that detention was not the proper remedy to follow. It is true that in a sense the Court has got the same material which was before the Commissioner. It is also true that the Commissioner has not said in his affidavit that he had any other material except the material which led to the laying of the trap. In fact after outlining the incidents which took place on the 17th, 18th, 19th and 22nd October 1965, the Commissioner of Police said on the 29th October 1965 'all these facts were reported by the Inspector of Police, Crime Branch (Drugs Control) C. I. D., Bombay to me. The entire record of the case was also placed before me. On a careful consideration of all this material, I was satisfied that it was necessary to detain the petitioner for the purposes mentioned in the order. Accordingly, I passed the order of detention on the 2nd November, 1965'. As we have laboured to point out, the material placed before the Commissioner of Police was very much damaging to the petitioner and it revealed a method and that being the case it is impossible to hold that the Commissioner of Police as a rational man would not have come to the conclusion that it was necessary to detain the petitioner by an order under R. 30 (1) (b) of the Defence of India Rules.
(18) That disposes of the principal arguments that were urged before us by Mr. Chagla. In fairness to Mr. Chagla we may mention two more marginal points which he urged before us; he pointed out that the prosecution against the petitioner has now been dropped and the petitioner has been discharged. This shows that the allegations on which the order of detention was passed are open to doubt. In any case the Government do not share the courage or conviction regarding the correctness of these facts. The learned Government Pleader contended that the fact that the prosecution has been dropped and that the petitioner has been discharged is entirely irrelevant so far as the correctness of the facts or the material on which the action is based is concerned. He pointed out that it is open to the Government to re-launch a prosecution because after all there is no acquittal after trial and the petitioner has only been discharged. He explained that the Government felt that it will be unfair to continue the prosecution so long as the petitioner is in detention. In this connection he referred to the decision of the Full Bench of this Court in Maledath v. Commissioner of Police, : AIR1950Bom202 (FB). In that case malyali was arrested in connection with an offence alleged to have been committed by him. While he was under arrest an order of detention was served upon him under the Bombay Public Security Measures Act. The Full bench held that the order of detention was mala fide because the object of the order was to enable the police to continue investigation. The learned Judges observed: 'When an offence has been committed, the police authority may investigate it, in which case they must comply with the provisions of the law with regard to investigation or they may feel that the detention of the accused is more essential in the interests of the State, and what is more important is what he is likely to do rather than what he has already done, in which case, it would be open to them to detain him under the Security Act. But they cannot pursue both the rights at the same time. They cannot detain a person under the Security Act and at the same time carry on investigation against him without providing him with the safeguards to which he is entitled under the law' Of course these observations related to the steps taken in the course of investigation. In the present case the investigation was completed and the prosecution was actually launched. In terms, the observations stated above will not apply to this case. At the same time it is difficult to hold that the Government withdrew the prosecution because they were not sure of the outcome of the case. If the Government though of withdrawing the prosecution on the ground that the petitioner may not have a fair trial so long as he is in detention, it is difficult to draw any inference from the action taken by the Government. We may, however, observe that if and when the petitioner is released from detention the Government would do well to revise the prosecution and prosecute it to its logical conclusion.
(19) Mr. Chagla contended that it will be more fair for the detenu that the prosecution goes on. If the prosecution continues and if at the trial the allegations on which the position is based remain unproved, then it will be clear that the action of detention taken by the Government on the said material was not only unwarranted but was mala fide. There is some force in this line of reasoning. At the same time, even assuming for the sake of argument, that the accused has been acquitted at the end of a trial that does not mean that the allegations on which the prosecution was launched or on which the order of detention was based, are false or non-existent. The Full Bench has referred to the possibility of an acquittal in a criminal case and pointed out that even in such a case it is open to the detaining authority to take action on the material that has been placed before it. They observed 'The detaining authority may detain a person although a criminal Court has acquitted him in respect of the very charge for which he is being detained under the Security Act'. That is because the fact of the acquittal by itself would not lead to the conclusion that the material on which the prosecution is launched is false. At best, 'acquittal' means that the allegations have not been proved. The learned Government Pleader in this connection pointed out that there may be a class of cases where it will not be possible for the Government to launch a prosecution for want of legal evidence and yet it will be competent to the detaining authority to pass an order of detention. As an hypothetical instance he pointed out a case where the detenu himself has made certain admissions in the course of the statement recorded by the police during investigation. This would be sufficient material on which the detaining authority could act. It would not be a correct proposition of law to lay down that the detaining authority can only act on material which amounts to relevant or admissible evidence in a court of law.
(20) The result is the petition fails and is dismissed. No order as to costs.
(21) Petition dismissed.