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Ramesh Chandra Agrawal Vs. Adhikchhak Janpad Karagar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1984CriLJ1091
AppellantRamesh Chandra Agrawal
RespondentAdhikchhak Janpad Karagar and ors.
Cases ReferredPhillipa Anne Duke v. State of Tamil Nadu
Excerpt:
.....was not competent to in regard to petitioner's' preventive detention, act on behalf of the state government. the act, therefore, clearly qualifies as a law for the time being in force for the maintenance of essential supplies as contemplated by clause 2(2)(b) of the business of uttar pradesh (allocation) rules, 1975. 9. a perusal of the provisions of prevention of black marketing and maintenance of supplies of easeful commodities act, 1980 shows that it amongst other matters is a law which is aimed at preventing persons from committing offences punishable under the essential commodities act i. 1975 issued by the governor of uttar pradesh in exercise of his powers under article 166(2) and (3) of the constitution, which in our opinion is good enough to sustain his authority in the..........was based, were also served upon him. in due course the detention order was approved by the state government on 13th january. 1984 and the information about the same was forwarded to the central government on 16th january, 1984. the state government then placed the necessary papers before the advisory board on 17th january, 1984. in the meantime sri daya shanker misra advocate submitted representations addressed to the president of india. prime minister, governor of the state and the chief. minister of the state requesting them to revoke the order of detention dated 4th january, 1984 passed by the district magistrate, agra. the petitioner also submitted re-presentation addressed to the secretary of government of u.p. through superintendent district jail. agra praying for.....
Judgment:

H.N. Seth, J.

1. By this petition under Article 226 of the Constitution Ramesh Chandra Agarwal questioned the validity of his detention under the provisions of Section 3(1) of the prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 authorized by the District Magistrate, Agra vide his order tinted 4th January, 1984.

2. The petitioner is a licenced wholesale dealer of Kerosene Oil carrying on business in the name of M/s. Ramesh brothers at 3-15 Chhatta Gali, Agra. It is said that the Additional District Magistrate (Supplies). Agra inspected the business premises of the petitioner on 19th November, 1983 and after inspecting the records made available to him, he concluded that the petitioner had during the month of October. 1983 disposed of 16000 litres of Kerosene Oil in black market by showing its sale in the name of fictitious persons. In due course a Crime Case No. 509 of 1983 under Sections 3/7 of the Essential Commodities Act was registered and the petitioner was arrested on 31st of December. 1983. The same day he was released on bail. The Additional District Magistrate (Civil Supplies) then submitted the report to the District Magistrate, Agra requesting him to take action against the petitioner under the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The District Magistrate then passed the impugned order authorizing petitioner's detention under the provisions of the said Act on 4th January, 1984. The petitioner was in pursuance of the said order, arrested on 9th January, 1984 when the copies of the order as well as the ground on which the requisite satisfaction of the District Magistrate was based, were also served upon him. In due course the detention order was approved by the State Government on 13th January. 1984 and the information about the same was forwarded to the Central Government on 16th January, 1984. The State Government then placed the necessary papers before the Advisory Board on 17th January, 1984. In the meantime Sri Daya Shanker Misra Advocate submitted representations addressed to the President of India. Prime Minister, Governor of the State and the Chief. Minister of the State requesting them to revoke the order of detention dated 4th January, 1984 passed by the District Magistrate, Agra. The petitioner also submitted re-presentation addressed to the Secretary of Government of U.P. through Superintendent District Jail. Agra praying for revocation of the order of detention. According to the averments made in the writ petition the representations sent by petitioner's counsel on 17th January, 1984 addressed to the President of India, Prime Minister, Governor of the State and Chief Minister of the State were all delivered to the addressees on 19th of January. 1984 as was borne out from the acknowledgement due slips received by the learned Counsel on 28th January, 1984 and 31st January, 1984.

3. The petitioner filed the present petition before this Court on 9th of Feb. 1984 raising a number of grounds for questioning the validity of his detention in pursuance of the order passed by the District Magistrate, Agra on 4th January. 1984. However, in view of the facts mentioned in the counter-affidavit filed on behalf of the respondents, the petitioner pressed only some of the grounds raised by him in his petition and we will proceed to consider the grounds so pressed by him.

4. Learned Counsel for the petitioner contended that according to, the rules of business of the State Government, the matters with regard to preventive detention fell within the jurisdiction and purview of the Chief Minister. As claimed by the respondents all actions in this case, required to be taken by the State Government, have been taken by the Food Minister. Inasmuch as the Food Minister is under the rules of the business not competent to take such actions, the matter, at the State level, has not been dealt with by a competent authority and the continued detention of the petitioner has been rendered illegal. In this connection the petitioner also referred to an order passed by the then Chief Minister according to which all such cases in which the detention order is to be confirmed by the Food Department under the Preventive Detention Act for black-marketing and hoarding are to be disposed Of by the Food Minister and nil other such matters in which the approval of the Chief Minister was required were to be disposed of by the Chief Minister. He contended that aforementioned order passed by the Chief Minister also did not confer any valid authority on the Food Minister to deal with the cases of preventive detention under the provisions of Supplies of Essential Commodities Act, 1980. In support of this submission learned Counsel referred us to a Division Bench decision of this Court in the case of Jai Ram Das v. District Magistrate, Unnao 1982 Luck LJ 370.

5. On behalf of the respondents it is contended that according to Article 166 of the Constitution of India the Governor has been empowered to make rules for the more convenient transaction of the business of Government of the State and for the allocation amongst the Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. In exercise of the said power the rules of business were framed by the Governor from time to time. The Business of Uttar Pradesh (Allocation) Rules, 1975 was also issued by the Governor in exercise of the said power. These rules laid down that the business of the Government shall be transacted in the section of the department of Uttar Pradesh Secretariat as may be specified by general or special orders of the Governor issued from time to time in that behalf. These rules further lay down that till further orders relating to allocation of business to various departments are issued, the allocation made by the Governor immediately before the commencement thereof shall continue to be in force. Clause 2(2) of the Business of Uttar Pradesh (Allocation) Rules. 1975 lays down that in addition to the subjects specifically allocated or deemed to be allocated to them all sections or departments of Uttar Pradesh Secretariat shall have, subject to general direction of the Chief Secretary, powers to issue Orders under any of the following laws, in so far as the subject is allocated to them:

(a) The Defence of India Act and Rules for the time being in force.

(b) Any law for the time being in force for the maintenance of essential services or essential supplies.

(c) The Essential Commodities Act for the time being in force.

(d) Any law relating to land requisition for the time being in force.

(e) ...

Rule 3 of the aforementioned business rules then provides that the Governor, shall, on the advice of the Chief Minister allot amongst the Ministers the business of the Government by assigning one or more department to the charge of a Minister. According to the orders issued by the Governor the business in respect of U.P. Kerosene Oil Control Order, 1962 is to be transacted in the department of Food and Civil Supplies (Essential Commodities)(Section 1). The said department stands, under Clause 3 of Business of Uttar Pradesh (Allocation) Rules 1975 assigned to the Food Minister. Accordingly in the instant case the case of the petitioner fell within the purview and jurisdiction of the Food Minister who was wholly competent to deal with it on behalf of the State.

6. Having heard the learned Counsel Sri Daya Shanker Misra appearing for the petitioner as also Sri Arnar Saran, learned Counsel who was allowed by the Court to intervene inasmuch as he had also raised similar question in other Habeas Corpus Writ Petition filed by him, we are not satisfied that there is any merit in the submission that the Food Minister was not competent to in regard to petitioner's' preventive detention, act on behalf of the State Government.

7. Neither Sri Daya Shanker Misra nor Sri Amar Saran questioned the stand taken by the respondents that according to the Business of Uttar Pradesh Allocation Rules. 1975 the business with regard to U.P. Kerosene Oil Control Order. 1962 is to be transacted in the department of Food and Civil Supplies (Essential Commodities) (Section-1) and that the said department stands assigned to the Food Minister. Contention of the petitioner, however, is that by the Business of Uttar Pradesh (Allocation) Rules 1975 the Governor has merely authorized all business in respect of U.P. Kerosene Oil Control Order 1962 being transacted in the Department of Food and Civil Supplies (Essential Commodities) (Section-1). He did not authorize transaction of business with regard to detention of a person under the provisions of Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 either to this department or to any other department assigned to the Food Minister. Accordingly the Food Minister was not competent to pass any order on behalf of the State Government in connection with the petitioner's preventive detention.

8. It is true that under the Business of Uttar Pradesh (Allocation) Rules, 1975 amongst other matters, it is the business concerning the U.P. Kerosene Oil Control Order, 1952 which is required to be dealt with in the Department of Food and Civil Supplies (Essential Commodities) (Section-1) and that the order directing the petitioner's detention under the provisions of Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act. 1930 cannot be said to be an order made under the Kerosene Oil Control Order, 1962. But then it has not been shown to us that there is any rule of business framed by the Governor specifically allocating the business relating to Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 to any particular department of the Secretariat. However, Clause 2(2) of the Business of Uttar Pradesh (Allocation) Rules, 1975 lays down that apart from the Subjects specifically allocated or deemed to be allocated to various sections and departments of Uttar Pradesh Secretariat such departments or sections shall also have the power to issue orders under any law for the time being in force for the maintenance of essential service or essential supplies in so far as the subject allocated to them is concerned. Main purpose of enacting the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act obviously is to prevent any person from acting in a manner prejudicial to the maintenance of supply of essential commodities as defined in the Act. The Act, therefore, clearly qualifies as a law for the time being in force for the maintenance of essential supplies as contemplated by Clause 2(2)(b) of the Business of Uttar Pradesh (Allocation) Rules, 1975.

9. A perusal of the provisions of Prevention of Black marketing and Maintenance of Supplies of Easeful Commodities Act, 1980 shows that it amongst other matters is a law which is aimed at preventing persons from committing offences punishable under the Essential Commodities Act i.e. preventing them from contravening the provisions of various Control Orders issued under the Essential Commodities Act. Admittedly Kerosene Oil Control Order; 1962 is an order issued under the Essential Commodities Act which is aimed at maintenance of supplies of kerosene oil which is an essential commodity. In the contest it can be said that the Kerosene Oil Control Order. 1962 i.e. one of the subjects pertaining to Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Accordingly any business in regard to the matter concerning preventive detention relating to breach of Kerosene Oil Control Order, 1962 has to be transacted in the department of the Secretariat in which the business relating to Kerosene Oil Control Order, 1962 is transacted, Petitioner's case has thus been rightly dealt with in the department of Food and Civil Supplies (Essential Commodities) (Section-1) assigned to the Food Minister and the Food Minister had ample power and jurisdiction to pass orders therein on behalf of the State Government.

10. It may be mentioned that the order of the Chief Minister which was referred to by the learned Counsel for the petitioner in respect of which this Court had in the case of Jai Bam Das v. District Magistrate. Unnao 1982 Luck LJ 370 ruled that it did not confer jurisdiction on the Food Minister is for our purposes not at all relevant. Firstly it has not been shown that the said order is still in force, secondly the respondents have not justified the authority of the Food Minister to act on behalf of the State Government on the basis of that order. They have justified the said authority on the basis of the Business of Uttar Pradesh Allocation Rules. 1975 issued by the Governor of Uttar Pradesh in exercise of his powers under Article 166(2) and (3) of the Constitution, which in our opinion is good enough to sustain his authority in the present case.

11. Learned Counsel for the petitioner next contended that petitioner's detention stands vitiated inasmuch is the State Government neither decided the representation made to it by the petitioner through his Advocate on 17th January, 1984 nor did it place the same before the Advisory Board within a period of 21 days. Further the Central Government has also not decided the Representation made to it by petitioner's Advocate on 17th January 1934. So far as the representations made by petitioner's counsel to the State, namely those addressed to the Governor and the Chief Minister of the State on 17th January. 1984 are concerned the case of the respondent is that the said representations were no received in the relevant section and as such it could not either be decided or placed before the Advisory Board. Regarding' petitioner's representation made through his counsel to the President of India and the Prime Minister, it was contended by the respondents that the said representation was received in the President's Secretariat and was on 25th January, 19 84 forwarded to the State Government for necessary action. It was received in the relevant section of. the State Government on 18th February 1984 and the State. Government immediately called for a report from the District Magistrate. The comments of the District Magistrate were receiver) on 22nd February, 1984. Inasmuch as the representation forwarded to the State Government by the Central Government revealed that the petitioner had, on identical grounds, requested the State Government also to exercise power to revoke the detention order, the State Government decided to consider the same and by order dated 24th February, 1984 it rejected the same and forwarded its comments along with the representation received by it to the Central Government. The comments of the State Government reached the Central Government on 25th February, 1984 and it vide order dated 5th March, 1904 rejected the representation. The respondents, therefore, claim that in the circumstances the representations made by the petitioner to the State Government and Central Government stand disposed of and that in disposing of the same they have acted with promptitude.

12. Before us there is serious controversy with regard to receipt of the representations made by petitioner's counsel on 17th January, 1984 which were addressed to the Governor of U.P. and the Chief Minister. Whereas the case of the petitioner is that the said representations were duly received by the addressees on 19th January, 1984, the case of the respondents is that they were never delivered to the two addressees and as such no question of either considering them or placing before the Advisory Board arises. However, when the State Government came to know about this fact from the representation which had been forwarded to it by President's Secretariat it promptly called for the report from the District Magistrate and took a final decision thereon. The petitioner, has, in order to substantiate his case, produced before us the acknowledgment slips which purport to bear the signature of the officers receiving them indicating thereby that the representations had been delivered to the two addressees on 19th January, 1984 and in any case before 31st January, 1984 (the date of which the acknowledgment slips were received back by petitioner's counsel). It is apparent that in case it is found that the said representation had been delivered to the two addressees on 19th January. 1984. or before 31st January, 1984, there would be laches on the part of the State Government in disposing of the same and in not placing it before the Advisory Board within time stipulated by the Act and continued detention of the petitioner would be rendered illegal. If on the other hand, it is found that neither the Governor nor the Chief Minister actually received the said representation no blame would attach to the State Government either for not dealing with it or for not placing it before the Advisory Board. However, in the view which we are going to take in this case, it is not necessary for us to resolve this controversy at this stage.

13. So far as the representation made by petitioner's counsel addressed to the President of India and the Prime Minister is concerned, it is not disputed that the said representation was received by the two addressees on 19th January, 1984. The case of the respondents is that the representation received in President's Secretariat was forwarded to the State Government on 25th January, 1984 and was received by the State Government on 18th February, 1984. As the affidavits filed by the respondent did not indicate the purpose for which said representation had been forwarded by the Central Government to the State Government on 25th January, 1984 and there was a delay of about 24 days as between despatch of the representation from the President's Secretariat and its receipt in the concerned section of the State Government, we called upon the respondents to explain the same. The State Government then produced its record for our perusal which revealed that after the representation made by the petitioner through his counsel on 17th January 1984 was received in President's Secretariat it was under a covering letter dated 25th January, 1984 despatched to the Chief Secretary U.P. Lucknow for appropriate action. It is not clear from the records as to on what date the said representation was actually received in the office of the Chief Secretary. However, after the petitioner filed the present petition on 8th February. 1984 and its notice was given to the counsel for the Union of India, petitioner's grievance that the representation made by his counsel had not been disposed of by Union of India, was brought to its notice. Accordingly the Union of India sent a telegram addressed to the Chief Secretary to Government Lucknow which runs thus:-

Ramesh Chandra Agrawal of district Agra and a detenu under the Prevention of Black marketing Act, has filed a Habeas Corpus writ petition in Allahabad High Court, para 32 of the petition states that Daya Shanker Misra Advocate had sent representation dated, 17th January, 1984 to the President. As reported by the President's Secretary the said representation in original was forwarded to the Chief Minister vide letter No. 476/P-11-84 dated 25th January, 1984. Furnish immediately parawise comments of State Government thereof to enable Central Government to consider the representation.

On receipt of the telegram it was immediately sent to the section concerned which was galvanized into taking action and it took immediate steps on 18th February. 1984 for obtaining the report of the District Magistrate and then, as stated earlier, after receiving the same the State Government rejected the representation and forwarded its comment's thereon t0 the Union of India on 25th February, 1984. It is thus clear that after petitioner's representation praying for revocation of the detention order was received in President's Secretariat, the Union of India did not take steps to immediately dispose it of and it merely forwarded the same to the Chief Secretary U.P. Government for taking appropriate action. Union of India was impelled to take action for disposal of the representation made by the petitioner only near about 17th February, 1984 when the writ petition filed by the petitioner containing a grievance that the petitioner's representation made to the Union of India had remained indisposed of, was brought to its notice and it was then that a telegram dated 17th February, 1984 was sent to the Chief 'Secretary' U.P. Government calling upon him to submit the comments of the State Government so as to enable the Central Government to consider the representations made by the petitioner. We are not impressed by the submission made by learned Counsel for the State Government that when on 25th January. 1984 the representation of the petitioner was forwarded by the president's Secretariat for taking necessary action what the Central Government meant was that the State Government should submit its parawise comments on the representation submitted by the petitioner so that it may deal with the representation and pass appropriate orders thereon. The phrase 'for taking necessary action' used in the letter dated 25th January, 1984 addressed to the Chief Secretary obviously meant that necessary action for disposing of the representation was to be taken by the State Government. The State Government sent its comments on petitioner's representation to the Union Government only because it was requested to do so by the telegram dated 17th February. 1984 and not because of anything contained in the letter dated 25th January, 1984 from President's Secretariat. There is absolutely no explanation on behalf of the Union Government as to why it did not till 17th February, 1984 take any steps towards disposal by it of petitioner's representation (received by it on 19th January. 1984). There is thus unexplained delay of about 30 days on the part of Central Government in dealing with petitioner's representation. It is now well settled that representation made by a detenu to the Central Government praying for revocation of a detention order has to be dealt with by the Government expeditiously and any objectionable and unexplained delay in its d spousal renders the continued detention invalid. Learned Counsel for the respondent referred us, to the decision of the Supreme Court in the case of Satpal v. State of Punjab : 1981CriLJ1867 and urged that inasmuch as the Central Government has already disposed of the representation, the delay, if any. on its part does not result in rendering petitioner's detention illegal. We arc afraid that the submission made by the learned Counsel for the respondents is not borne out from any observation made by the Supreme Court in Satpal's case. The effect of the observation made by the Supreme Court in Satpal's case merely is that in a case where there is delay on the part of the State Government in forwarding the representation made by the detenu to the Central Government but then Central Government has, after receiving it has disposed it of promptly. Any delay on the part of the State Government in forwarding the same to the Central Government may not result in rendering continued detention of the detenu invalid. In our opinion, the observations made in Satpal's case cannot be construed as meaning that even where after receiving the representation the Central Government remains inactive and does not take steps towards disposal of the same for a period of about a month, this delay is of no consequence and has no effect on the question of validity of detenu's continued detention.

14. Learned Counsel for the respondents then argued that the Central Government is obliged to consider only such representation made by the detenu which is addressed to a competent authority. In case a representation is made to an authority other than the authority which is not competent to act on behalf Of the Central Government, its non-disposal or delayed disposal, would not render the continued detention invalid. In this connection he relied upon the observations made by the Supreme Court in the case of Phillipa Anne Duke v. State of Tamil Nadu : 1982CriLJ1389 wherein Hon'ble O. Chinnappa Reddy, J. observed thus (at p. 1391):-

It is not also possible to treat representations from whatever source addressed to whomsoever officer of one or other department of the Government as a representation to the Government requiring the appropriate authority under the COFEPOSA Act to consider the matter.

According to the learned Counsel the business of Government of India is to be transacted in accordance with rules for transaction of business of the Government made by the President. The President has under Allocation of Business Rules. 1961 framed under Article 77(3) of the Constitution required the Ministry of Civil Supplies (Nagrik Purti Mantralaya) to deal with the subject-matter of Prevention of Black marketing of Essential Commodities Act. 1980. Accordingly the representation, if any, addressed to the Government of India should in this regard have been addressed to the Minister concerned and not to the President of India or to the Prime Minister. Inasmuch as petitioner's representation was not addressed to the proper authority which under the Allocation of Business Rules, 1961 was competent to deal with it. It was not a representation addressed to a competent authority and Central Government was not obliged to dispose it of.

15. We are unable to accept this submission in so far as the petitioner's representation addressed to the President of India is concerned we are refraining from expressing any opinion with regard to the propriety of petitioner's representation addressed to the Prime Minister. Article 53 of the Constitution lays down that the executive power of the Union of India shall be vested in the President and shall be exercised by him ether directly or through officers subordinate to Him in accordance with this Constitution. Accordingly all petitions whereby Union of India is requested to take action can be addressed to the President. Only effect of the rules promulgated by the President under Article 77 of the Constitution is that the concerned Minister or the person authorized thereby becomes entitled to take action for and on behalf of the President but then it does not mean that the President of India in whom the Executive power of the Union vests and who under the Constitution of India is required to exercise that power in accordance with the Constitution, ceases to be the authority to whom representation in respect of functions to be performed by the Union Government are to be addressed. Accordingly in so far as the representation made by the petitioner to the President of India is concerned, it does not fall within the class of representations which as per observations of Hon'ble O. Chinnappa I Reddy, J. mentioned above, the Union of India was not required to consider.

16. Since there is unexplained delay on the part of the Union of India in proceeding to consider the representation made by the petitioner praying for revocation of the impugned order, the continued detention of the petitioner rendered illegal.

17. In the result, the petition succeeds and is allowed and the respondents are directed not to keep the petitioner under detention in pursuance of the order dated 4th January, 1984 passed by the District Magistrate Agra authorizing the petitioner's detention under Section 3(1) of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 and to forthwith release him from their custody unless his detention is otherwise required in connection with any other case.


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