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Ram Bhagat Agarwala Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1984CriLJ392
AppellantRam Bhagat Agarwala
RespondentState of Orissa and ors.
Cases ReferredDhananjoy Das v. District Magistrate.
Excerpt:
.....authority empowered by the statute is well-grounded. but if the statement of facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand what exactly is the allegation against him and thus he is prevented from making an effective representation, such a vague ground is sufficient to hold that there has been violation of article 22(5) of the constitution of india. there is no provision in the act like the one contained in section 5-a of the conservation of foreign exchange and prevention of smuggling activities act, 1974 to the effect that an order of detention shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not pro. no..........has been infraction of the mandatory provision contained in section 3(4) of the act requiring the state government to report the fact of detention after its approval to the central government within seven days from the date of approval together with the grounds on which the order has been made and such other particulars as, in the opinion of the state government, have a bearing on the necessity for the order. it has also been submitted on behalf of the petitioner that some of the grounds of detention are not only unfounded, but vague in character which would give a clear indication of complete non-application of mind by the detaining authority prior to the subjective satisfaction which would be the foundation of making the order.3. the learned government advocate has contended that the.....
Judgment:

B.K. Behera, J.

1. Challenge in this writ application under Articles 226 and 227 of the Constitution of India is to the order of detention of the petitioner under Section 3(1) of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short, 'the Act') by the District Magistrate, Sambalpur, by his order dated Apr. 8, 1983.

2. Mr. Ranjit Mohanty, appearing on behalf of the petitioner, has contended that there has been infraction of the mandatory provision contained in Section 3(4) of the Act requiring the State Government to report the fact of detention after its approval to the Central Government within seven days from the date of approval together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. It has also been submitted on behalf of the petitioner that some of the grounds of detention are not only unfounded, but vague in character which would give a clear indication of complete non-application of mind by the detaining authority prior to the subjective satisfaction which would be the foundation of making the order.

3. The learned Government Advocate has contended that the order of detention was approved by the State Government on (sic) April, 1983 and this requirement of Section 3(4) of the Act was complied with on May 6, 1983 beyond the period provided therein and he has instructions to submit that as there had been a series of natural calamities in the State, the concerned officers were extremely busy for which there had been some delay. According to him, in the absence of any provision that non-compliance of Section 3(4) of the Act would render the order of detention invalid, the order of detention cannot be struck down on account of the delay. He has submitted that the subjective satisfaction of the detaining authority is not justiciable and for good and valid reasons, the impugned order of detention had been passed.

4. In the writ application, each one of the grounds of detention has been challenged by the detenu who, it is alleged, being one of the partners of M/s. Shiv Sankar Rice Mill at Sohalla dealing in essential commodities, viz., rice and paddy, had acted in a manner prejudicial to the maintenance of supplies of these articles by disposing of the stock in the open market unauthorisedly and in violation of the terms of the licence issued to him, had swindled the Union Bank of India by taking away the rice and paddy bags from the locked godown of the Bank which had caused reduction in the supply of essential commodities to the communities, had not given the full target in the years 1980-81 and 1981-82, had not maintained correctly the accounts as re-quired under the Orissa Rice and Paddy Control Order, 1965 and Rule 9 of the Rice Milling Industry (Regulation and Licensing) Rules, 1959, had violated the provisions of the Essential Commodities Act relating to equitable distribution of the commodities and had committed acts for which the detaining authority apprehended that he would adept the same aetion and practice in future and would dispose of the mill which would lead to Irreparable loss and injuries to the State Government and that his present and apprehended action was likely to influence other persons dealing in such commodities to commit similar acts. As would be noticed from the counter-affidavit sworn by the detaining authority, the facts and allegations made in the writ application have been 'denied with-out specifying the grounds for which the detention had been made and the materials in support of the grounds. There should be greater precision and perspicuity in an affidavit filed in the Court. Care and clarity are particularly important when the Court is concerned with questions of personal freedom. Merely filing of a counter-affidavit denying everything is not enough to discharge the burden nor would it enable the court to make a correct review of the case. An affidavit is to broadly mention the prejudicial activities of the detenu as also the materials on which subjective satisfaction in regard to such activities was founded See 1980 Cri LJ 1040 Mohiuddin Tayab v. State of Maharashtra. The learned Government Advocate has taken us through the grounds of detention and has supported them as well-founded having been based mainly on the report of the Civil Supplies Officer.

5. Section 3(4) of the Act provides :

When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under Sub-section (1) the State Government shall, within seven days, report the fact to the Central Government, together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.

The procedure embodied in the Act is judges in the context of the urgency and the magnitude of the problem, the underlying purpose of the restriction and the prevailing conditions. The provision contained in Section 3(4) of the Maintenance of Internal Security Act, 1971 was the same as Section 3(4) of the Act. Infraction of the procedural mandate of the nature contained in Section 3(4) of the Act would render the order of detention invalid as clearly laid down by the Supreme Court in : [1975]3SCR154 Sher Mohammad v. State of West Bengal. Their Lordships of the Supreme Court have observed and held (at page 1752 of Cri LJ) :

A fair reading of Section 3 indicates that the State Government may directly issue an order of detention or, if it is done by a lesser authority, approve of such detention order as provided in the statute. Sub-section (4) of Section 3, which we have extracted, obligated the State Government to communicate, within seven days of the order of detention it makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relevant particulars. Even assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Government within the time specified. This procedural mandate is inviolable except on peril of the order being avoided.

In the present case it is obvious that the detention order was made on November 21, 1972 by the District Magistrate and approved by the State Government on Dec. 2, 1972. It is curious that on the State's own showing the communication to the Central Government in compliance with Section 3(4) of the MISA has been made on Dec, 1, 1972. This date is beyond seven days of the District Magistrate's order and it could not have been in compliance with the seven days' spell after the approval by the State Government, that having been done only a day after the alleged communication to the Central Government. It is thus plain that the State Government could not have communicated the approval to the Central Government before the approval itself was made. Secondly, if what it communicated was the order of the District Magistrate, it was not sufficient compliance with the statutory, requirement. Moreover, it was beyond the seven days' period.

In short, there has been infringement of the procedural safeguard. This Court has, in several rulings held that the liberty of the citizen is a priceless freedom, sedulously secured by the Constitution. Even so, during times of emergency, in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concern of the courts to enforce.

The ground taken by the learned Government Advocate that the officers concerned were busy owing to natural calamities in the State and therefore, there had been some delay in complying with S, 3(4) of the Act does not appeal to us and even if this ground is accepted, it cannot be said that the aforesaid mandatory provision has not been infringed. The order of detention must, therefore, be rendered invalid in view of the clear violation of the provision made in Section 3(4) of the Act.

6. In this view of the matter, it would hot be necessary for us to examine the contentions raised by the learned Counsel for both the parties with regard to the validity of each of the grounds, but for the reasons to follow, we find that there had been no proper application of mind by the detaining authority and some of the grounds were not only unfounded, but vague in the extreme. We are not oblivious of the limited jurisdiction of this Court in a case of this nature where this Court is not to sit in appeal and judge as to whether the subjective satisfaction of the detaining authority empowered by the statute is well-grounded. We are not to make a detaied assessment of the materials to find out as to whether there are sufficient grounds for the detention of the petitioner. It must, however, be kept in mind that the liberty of a citizen should be placed at a high pedestal and should not be curtailed illegally or arbitrarily by the detaining authority.

7. As has been laid down by the Supreme Court in AIR 1981 SC 746 : 1981 Cri LJ 306, Francis Coralie Mul-In v. Administrator, Union Territory of Delhi, the position is that Article 21 of the Constitution requires that no one shall be deprived of his life or personal lberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the court to decide in exercise of its constitutional power of judicial review whether the deprivation of the life or personal liberty in a given case is by procedure which is reasonable, fair and just or it is otherwise.

8. The court may not go into the truth or otherwise of the facts alleged in the grounds of detention. But if the statement of facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand what exactly is the allegation against him and thus he is prevented from making an effective representation, such a vague ground is sufficient to hold that there has been violation of Article 22(5) of the Constitution of India. The ground can be said to be irrelevant when it has no connection with the satisfaction of the detaining authority and if irrelevant grounds are taken into consideration for making the detention order, it would be sufficient to vitiate the order (see : [1980]1SCR258 Mohd. Yousuf Rather v. State of Jammu and Kashmir.

9. The Act has conferred on the executive authority an extraordinary power to detain a person without taking recourse to the ordinary laws of the land and this detention is based only on the subjective satisfaction of a designated authority. The sufficiency of the grounds or the adequacy of the materials on which the order of detention is based is not justiciable. But in view of the provision made in Article 22(5) of the Constitution, the constitutional pledge enshrined: herein has to be kept by the court in view while considering a case of deprivation of the liberty of a citizen by making an order of detention.

10. It is not disputed at the Bar and, indeed, it cannot be, that if one of the grounds of detention is found to be vague or otherwise fails, the order of detention is rendered invalid. There is no provision in the Act like the one contained in Section 5-A of the conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 to the effect that an order of detention shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not pro. x'mately connected with such person or invalid for any other reason whatsoever. It is well-settled that if one of the grounds in the order of preventive detention is bad, the order of detention is wholly bad and cannot be sustained in law. In this connection, reference may be made to the principles laid done by the Supreme Court in : 1974CriLJ401 Manu Bhusan Roy Prodhan v State of West Bengal : 1974CriLJ326 , Bhupal Chandra Ghosh v. Arif Ali : 1975CriLJ791 , Magan Gope v. State of West Bengal : 1981CriLJ594 , Shiv Prasad Bhat-nagar v. State of Madhya Pradesh and (1983) 56 Cut LT 88: 1983 Cri LJ NOC (Ori) 162, Jyoti Ranjan v. State of Orissa.

11. The first ground of detention is:

That you along with Sri Ram kumar Agarwala and Smt. Sumtra Agarwala of Sohella area are the partners of M/s Siv Sankar Rice Mill, Sohella dealing in essential commodities essential to the communities (dealer with rice and paddy).

This could not be a ground for detention of the petitioner and would give some indication that grounds had not legally and properly been formulated.

12. The fifth ground of detention is:

That you as the partners of said mill have not given full target in the years 1980-81 and 1981-82. On account of these past activities on your part, it hag become prejudicial to supply and maintenance of essential commodities and distribution thereof to the public.

This had not been, based on any material and the report of the Civil Supplies Officer vhich has been annexed to the grounds of detention served on the detenu had made no mention about it. No law, rule or Government circular has been placed before us to show that a licensee is required to fulfil a particular target in any financial year. No specific averment giving the reasons in support of this part of the order has been mentioned in the counter affidavit put in by the detaining authority. This ground of detention is, therefore, unfounded and would vitiate the order.

13. Ground No. 7 would read:

That your action in dealing in essential commodities i.e. rice and paddy which are essential commodities as be-fined in Essential Commodities Act, 1956 with respect to which provision has been made thereunder. You have directly be feated the prevision of Essential Commodities Act relating to equitable distribution of the commodities available at fair prices. This shows that in order to defeat the provision of the said Act and with a view to making gain. you have acted in the manner which is pre-judicial to the maintenance of supplies of commodities essential to the community.

As rightly submitted by the learned Counsel for the. petitioner, this ground is vague on the face of it. No particulars have been furnished and nothing has beea shown therein as to how the petitioner has defeated the provisions of the Essential Commodities Act. It has not been stated as to how and for what the detaining authority has found that the petitioner has acted in a manner prejudicial to the maintenance of supplies of essential commodities to the community.

14. The next ground (No. 8) is:

That lastly your action as aforesaid has further clearly established that you have intentionally being actuated by mala fide intentionally disposed of the stocks kept with you on government account unauthorisedly and it is further apprehended that you would adopt the same action and practice in future and also it is apprehended that you are likely to dispose of the mill in question which will lead to irreparable loss and injuries to the government and it will become prejudicial to the maintenance of supplies of rice and paddy essential to the community and it will also likely acted in a manner prejudicial to the maintenance of supplies of essential commodities to the community.

This ground relates to a future apprehension. It was apprehended by the detaining authority that the detenu was likely to dispose of the mill in question which would lead to irreparable loss and injuries. It is not understood as to how this could be a ground for his detention. If the petitioner and the other partners to whom the, mill belonged would dispose of the mill, it would be open to the State Government to cancel the licence but this could net be a ground .for the detention of the petitioner.

15. After ground No. 2, some more facts have been stated in support of the order which are:

your action at present and in future is likely to infuence other persons dealing with such commodities in respect of which previsions have been made in Essential Commodities Act and other laws in force. It will influence others in making such gain with the means you have adopted and likely to adopt in future which directly or indirectly defeats or tends to. defeat the provision of the Act in question This your action afore-said and action apprehended in future has great impact on the public in general as evident from your conduct, antecedents and activities.

Although this was not numbered as a ground, the facts stated therein had also influenced the detaining authority in making the order. The allegations were as vague as they could be. In the absence of any material in support of this apprehension that the petitioner had at any time attempted to influence other persons to flout the provisions of the Essential Commodities Act and the laws in force, the detaining authority was not justified in keeping in mind these extraneous considerations.

16. We thus find that some of the grounds enumerated above have even no remote semblance of correlation with the provision contained in Section 3(1) of the Act read with the Explanation thereto and the entire order must be held to be invalid. (See : 1975CriLJ1648 , Krishna Murari Agarwala v. Union of India and : 1975CriLJ1871 , Nathmal v. State of Rajasthan).

17. The inclusion of vague, irrelevant and non-existent ground is an infraction of Article 22(5) of the Constitution, The frivolity of some of the grounds would indicate non-application of mind by the detaining authority. (See : [1968]2SCR505 , Rameshwar Lal v. State of Bihar : 1982CriLJ1777 , Jaya Mala v. Home Secy., Govt. of Jammu and Kashmir and : 1982CriLJ1779 Dhananjoy Das v. District Magistrate.

18. For the aforesaid reasons, we would allow the writ application, quash the impugned order of detention and direct the release of the petitioner forthwith, we make no order as to the costs of this proceeding.

G.B. Patnaik, J.

19. I agree.


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