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Kotha Kota Hadu Subudhi Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1975CriLJ117
AppellantKotha Kota Hadu Subudhi
RespondentDistrict Magistrate and ors.
Excerpt:
.....any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - again, the detaining authority having not indicated that he had been satisfied that the petitioner was responsible for the transactions even if he was absent, the order of detention would not be valid. he has asserted that he applied his mind to all the details and was satisfied that the petitioner's detention was necessary and warranted for the purposes of the act. the contention of the learned government advocate that these retailers must have been anxious to make more money in their own turn and, therefore, readily satisfied the demand of the petitioner for higher price seems to be quite possible. it is well settled that a detention proceeding is very different from a trial. the first ground of..........be compressed into a single analytical formula. according to us the petitioner's absence from the place of transactions on the 13th oct. 1973, does not knock off the foundation of ground no. 1. therefore, mr. patnaik's contention of the petitioner's absence from the place of business does not make ground no. 1 vulnerable.8. in regard to ground no. 2 the material feature is that 80 bags of urea were detected on 16-10-1973 from the tenanted premises of the petitioner. we have already indicated that it is not for us in this proceeding to determine the truth of the allegation. we have to proceed on the footing that the two rooms from one of which the recovery was made in the manner alleged were in physical occupation of the petitioner as a tenant. therefrom the unaccounted for stock of urea.....
Judgment:

R.N. Misra, J.

1. The petitioner is a licensed dealer in fertilizers and carries on his business al Aska Road within the town of Berhampur in the district of Ganjam, under our territorial jurisdiction. Under the Fertiliser (Control) Order, 1957, the maximum selling price of different categories of fertilisers has been determined. The District Magistrate of Ganjam, Opposite Party No, 1 passed an order on the 26th of December 1973, in exercise of powers under Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 26 of 1971 (hereafter referred to as the Act) for the detention of the petitioner on the following grounds;-

(1) The petitioner charged nether price than prescribed for sale of fertilisers when:

(a) Sasibhusan Padhi of village Chiladi purchased 100 bags of ammonium sulphate under bill No. 54 dated 13-10-1973, Though the bill was made out for a sum of Rupees 6,404.45 paise, he was actually charged Rs. 8.490A.

(b) K. Appallaswamy of village Jagapur purchased 70 bags of ammonium sulphate from the petitioner under bill No. 55 dated 13-10-1973. The price shown in the bill was a sum of Rs. 4,343.10, but he was actually charged a sum of Rs. 6,000/-, Both these transactions actually took place on 14-10-1973 though the respective bills are of the previous day.

(c) Ladi Raghavulu Patro of Patrapur purchased ammonium sulphate from the petitioner under two separate bills bearing Nos. 47 and 59 on 24-9-73 and 2-10-1973 respectively. He was charged Rs. 11/- in excess per bag in respect of these transactions.

The prescribed rate being Rs. 54.90 per quintal of ammonium sulphate excluding tax the rates charged by the petitioner in respect of the four transactions indicated that the petitioner was black-marketing in fertiliser, an essential commodity, at a time when there was great demand for, and shortage of fertilisers, The petitioner had, therefore, acted in a manner prejudicial to the maintenance of supplies of a commodity essential to the community.

(2) The petitioner had taken two rooms on rent within the premises of the Gopinath Rice Mill at Jagannathpur for storing goods. Those two rooms were being utilised for storing fertilisers. On 16-10-1973, the vigilance officers detected a stock of 80 bags of Urea from the said premises in the occupation of the petitioner. The petitioner had filed a return on 12-10-1973 declaring nil stock of Urea and in his subsequent return of 30-10-73, the petitioner had also made a similar return. Between 12-10-1973 and 30-10-1973, the petitioner had, therefore, received no stock of Urea from any authorised source. The seizure of 80 bags as indicated above showed that the petitioner had been indulging in hoarding for the purposes of black-marketing fertilisers thus acting in a manner prejudicial to the maintenance of supplies of a commodity essential to the community.

The petitioner challenges the order of detention in this application.

2. The petitioner has alleged that on 13-10-1973, he left for Calcutta by air from Bhubaneswar and stayed there on the 14th October 1973. From there he proceeded to Patna on 15-10-1973 where he stayed over for the following day. He claims that he left Patna for Varanasi on the 17th and stayed there for a day. According to the petitioner, therefore, he was absent from his place of business when the sales to Sasi-bhusan Padhi and K. Anpallaswamy were effected. It has further been pleaded that during his absence his brother-in-law, a young man still studying in the college, effected the sales. The petitioner has ascertained from him that nothing more than what has been stated in the respective bills had been collected from the purchasers. Alternately it has been pleadea that the brother-in-law was not the authorised agent of the petitioner and even if any extra price had been charged, since it had not oeen at the instance, or with the knowledge, of the petitioner, he cannot be held responsible for it. The petitioner has also alleged that the material upon which the detaining authority had acted is tainted, In one of the cases it has been said that the statement of the purchaser relied upon is the outcome of pressure, persuasion and manipulations of the vigilance officers, According to the petitioner since the cash receipts show the controlled rate, merely on the oral statement of one person in respect of such of the transactions running counter to the document-the respective bills-the detaining authority should not have passed the order of detention.

The further allegation of the petitioner is that the detaining authority did not apply his mind to the materials on record; was not aware of the fact that the petitioner was away from the place of business between the 13th and the 18th of October, 1973 and thus the transactions, as alleged, had taken place without the petitioner feeing involved in any manner therein. If the detaining authority knew the exact state of affairs, he would not have passed the order of detention. Again, the detaining authority having not indicated that he had been satisfied that the petitioner was responsible for the transactions even if he was absent, the order of detention would not be valid.

In regard to the 80 bags of Urea seized by the vigilance staff from the premises of the Gopinath Rice Mill, the petitioner claims that he had taken only one room on rent from the said Rice Mill for the purposes ot storage of fertilisers. The seized stock was not obtained from the room in the petitioner's possession and, therefore, he had no responsibility for the presence of the alleged illegal stock. The material to support Ihe plea that the said stock came from the tenanted premises of the petitioner was meagre and no reasonable person could have come to the conclusion that the detaining authority has reached on the same.

3. The detaining authority had made a return to the Rule nisi issued from this Court. In the counter affidavit, the order of detention has been justified. He has asserted that he applied his mind to all the details and was satisfied that the petitioner's detention was necessary and warranted for the purposes of the Act.

In paragraph 10 of the counter affidavit, it is specifically pleaded:. from the grounds it is evident that on 24-9-1973, 13-10-1973 and 14-10-1973 there were three transactions in which price in excess of the price according to law was charged for fertilisers, It has been contended in the writ petition that as the brother-in-law of the petitioner had charged that amount and the receipts do not show that, it would be deemed tnat there has not been proper application of mind. This contention is incorrect. Under the Fertiliser (Control) Order the sole responsibility is of the registered dealer or the licence holder. The petitioner is undisputedly the dealer. He is bound to sell fertiliser at the controlled price. If the fertiliser is sold at a rate higher than controlled price, the liability is of the dealer. The plea that somebody else in the shop sold the fertiliser and charged higher rates does not exonerate the dealer. The responsibility is of the dealer. Statements or persons who have purchased fertiliser on these three occasions have been recorded under Section 164, Cr.P.C. These are statements on oath before a Magistrate. Such statements can be considered to find out a prima facie case, The plea of absence of the petitioner taken in the writ petition is of no benefit to him to absolve from the responsibility under the law. This response bility is in the interest of the community for supply of essential articles. Any of the persons who was conducting sales and collecting money does it on behalf of the registered dealer. If the plea taken by the petitioner is accepted then the entire purpose of the Essential Supplies Act and the Fertiliser (Control) Order will be frustrated against the interest of the community. Freedom of trade does not mean that the petitioner is exempted from all the responsibi lity under the law relating to the essential supplies to the community at the controlled price....

Various other allegations of the petitioner have also been controverted as incorrect.

4. Law is fairly settled that the detaining authority cannot be required to furnish proof of the facts relied upon for making the order of detention. As we observed in a different case recently if the detaining authority is required to place proof in support of the facts stated to constitute the grounds, it would indeed amount to conversion of this proceeding to a regular criminal trial.

Mr. Fatnaik for the petitioner seriously attempted to convince us that there was no sufficient material for the satisfaction of the detaining authority. According to him, tested by the standards of human probabilities, the irresistible conclusion on the admitted facts would be that the petitioner has nothing to do with the sales that took place on the 13th Oct. 1973. Since the purchases were made under permits, the purchasers being sure of the supply to them of the fertilisers, there would be no occasion for them to agree to pay a higher price for the fertiliser.

Undoubtedly the purchases were under permits. We cannot, however, lose sight of the fact that fertilisers are in great demand. Their production has fallen short while demand for the same has gone up. That is why distribution has come to be regulated. There has been enough scope for clandestine dealings and black-marketing in the commodity, Even permit holders are not assured of supply and, therefore, are often ready to pay higher rates to acquire fertilisers. The purchasers before us are retailers. The contention of the learned Government Advocate that these retailers must have been anxious to make more money in their own turn and, therefore, readily satisfied the demand of the petitioner for higher price seems to be quite possible.

As fertilisers are a controlled commodity and have a prescribed selling price and contravention thereof is punishable, in the bills the black-market rate would never be indicated. Non-mention of the higher rate or the extra charges, therefore, is not a point on which Mr. 'Patnaik for the petitioner can seriously rely upon, The purchasers have given statements under Section 164, Cr, P. C. before Magistrate and thus the detaining authority had not only the reports of the local police and the Vigilance staff, but had also the statements of the buyers recorded by Magistrate for reaching his satisfaction in the matter.

It is well settled that a detention proceeding is very different from a trial. The law of preventive detention authorises detention without trial. Ordinarily, a trial takes place for an offence committed while detention is ordered mostly to avoid commission of offences or such acts as are necessary to be avoided for the purposes of the Act, We cannot, therefore, be called upon to look at the materials placed before us in the way a trial judge is required by law to do. We think it appropriate to state briefly the premises upon which the contentions raised by Mr. Patnaik must be tested.

The petitioner is a registered dealer under the Fertiliser (Control) Order of 1957. Ammonium Sulphate is one of the fertilisers for which maximum selling price has been fixed under the Order. Such fertiliser is sold on permit. Ammonium Sul- phate was being sold from the petitioner's shop. Higher rates over and above the prescribed rates were charged in respect of the four sales in favour of the three persons though the respective bills showed the controlled price only. The petitioner was absent between the 13th and 18th of October, 1973, from the place of business and during that period in presence of his brother-in-law Jagannath Rao two of the sales were effected by the petitioner's clerk, While sales were effected on the ] 3th Oct. at Berhampur delivery was effected two or three days thereafter from the godown at Jagannathpur.

5. According to the petitioner, Jagannath Rao was not his agent. He did not authorise him to charge a higher rate. Since it is not the detaining authority's allegation that the higher rates had been charged by any connivance or instigation of the petitioner, he cannot be found to have acted in a manner affecting the maintenance of supplies essential to the community. The detaining authority has at several places in the counter affidavit emphasised upon the feature that under the Control Order the responsibility for the impugned dereliction was of the petitioner. While conceding that the petitioner must shoulder the responsibility for such infraction as an act of negligence giving rise to liability for cancellation of the registration of licence and other penalties that may be provided in the event of negligence, Mr. Patnaik contends that the petitioner cannot be detained without a further finding that he had a hand in the black-marketing of fertilisers which essentially is the true Dasis for ground No. 1 of the order of detention.

The first ground of detention is based upon four materials namely, the sales tt Sasibhusan Padhi and Appallaswamy on 13-10-1973 and the sales to Raghuvelu Patra on 14-9-1973 and 2-10-1973. It is well settled that there is a clear difference between grounds and facts. As was indicated by this Court in T. V. Narasimha-murty v. The State : AIR1951Ori251 grounds are mainlv. if not solely, the reasons of detention. They are inferential deductions in terms of the social order sought to be maintained in the interest of the general public. In the instant case, the first ground is based upon four transactions. The main plea of the petitioner that he was away from his place of business is in relation to two of these. The sales to Raghuvulu Patra are not affected by the main plea of the petitioner, So far as the transactions with Raghuvulu are concerned, the petitioner challenged the same on the ground of mala fides and pleaded that the statement from Raghuvulu had been taken under threat and coercion. We have not been able to find any acceptable material in support of the petitioner's assertion, It would, therefore, follow that the detaining authority's allegations in regard to transactions with Raghtivulu stand.

6. We shall now deal with Mr. Pat-naik's contention in regard to the remaining two transactions which took place during the petitioner's absence. As already pointed r>ut, the transactions are said to have been negotiated on 13th October, 1973, though the actual delivery was effected a few days thereafter. The petitioner has pleaded that he left by air from Bhubaneswar on the 13th. There has been no indication as to exactly when the petitioner left his place or, the 13th and in the absence of the necessary material, we cannot hold that he was not a party to the negotiations which were carried on the 13th, It is true that the purchasers in their statements under Section 164, Cr.P.C. have stated that the petitioner was absent at the shop during the negotiation. Physical presence at the shop is not necessary for carrying on the business of black-marketing. In fact such transactions are allowed to thrive under cover. These two transactions are not the only ones where higher price has been charged. There is material on record that the petitioner has his shop at Berhampur and the godown at Jagannathpur a distance of four or five miles away,from Berhampur, Delivery is being effected from the godown while cash memos are issued at the shop on the deal being finalised. Such a practice cannot be said to be without knowledge of the petitioner.

The attack advanced on behalf of the petitioner against the detention order is on the ground that the petitioner had no connection with the two transactions of the 13th October as he was away. Admittedly the transactions have taken place and we have already held that the statements of the purchasers show that black-market rates had been realised. These two transactions cannot be held to be irrelevant in the same way as in several cases certain grounds are ruled out as irrelevant. We are not impressed with the argument that the petitioner had no hand in these two dealings. Even if it be held that he had not, these transactions would not turn out to be irrelevant because in the setting of events they are available for reaching satisfaction of the detaining authority in regard to the need for the petitioner's detention.

Law had been settled that if one of the grounds of detention turns out to bo vague, irrelevant or unsustainable, the whole order of detention fails. This is so because the order is the outcome of subjective satisfaction of the detaining authority and is not to be objectively tested. That principle, however, would not apply to a case of lliis type where the particulars providing the basis for the ground are not vague, irrelevant or baseless and indeed add support for the ground as constructive material.

Mr. Patnaik has not been able to show any authority in support of his proposition and relies upon the concept of mens rea absence whereof ordinarily does not result in conviction. Criminal law generally accepts mens rea as a constituent of the offence except where it is ruled out by statute as an clement. Detention under the Act is not only for avoiding commission of offences but also of any situation which adversely affects the defence of India, the relationship of India with foreign powers, the security of India, the security of the State, the maintenance of public order or maintenance of supplies and services essential to the community as provided under Section 3 (1) (a) of the Act. The activity which is taken exception to may or may not be an offence at all. As we said on another occasion, there may be no law prohibiting acquisition of rice, If a dealer in rice starts buying all the available rice in the locality with a view to deal in that commodity thereafter on monopoly basis, he may commit no offence, yet an order of detention may legitimately be made in exercise of powers under Section 3 (1) (a) (iii) of the Act. The conduct of the dealer would justify detention.

7. Distribution of fertilisers has been found necessary to be regulated. Therefore, Fertiliser (Control) Order has been promulgated. The petitioner has been authorised to deal in fertilisers. It is true that the petitioner may not be physically present at all times to ensure compliance with the provisions of the Control Order, but a duty has been cast upon him to ensure that even when he is away, there is no infraction of tho Fertiliser (Control) Order and clandestine transactions do not take place. Society has reposed a confidence in the petitioner by permitting him to deal in fertilisers and has prohibited all unlicensed or unregistered persons from dealing in such commodity. Apart from the legal consequences which would flow out of any default in compliance with the requirements of the Control Order, the petitioner has to conduct himself in such a manner that the provisions of the Control Order would not be rendered nugatory and tho scheme, so much necessary for the maintenance and appropriate distribution of fertilisers, is vitiated. If the petitioner had obtained authority for sale through agents, there could be no scope for a relation of his who is not an authorised agent to deal with fertilisers during his absence. The petitioner has taken the stand that his brother-in-law is not an agent is obviously to avoid the difficulty that might arise for the priu-cipal out of an agent's action. If the petitioner had made appropriate arrangements warranted in the circumstances, an unauthorised person like his brother-in-law could not have effected the sales. These are only additional features to support our view that the tvvo transactions said to have taken place during the absence of the petitioner are indeed not irrelevant grounds, One cannot lose sight of the position as indicated by Professor Harry Jones in his Book, 'Effi- cacy of Law' that the phenomenon of law in society is too complex to be compressed into a single analytical formula. According to us the petitioner's absence from the place of transactions on the 13th Oct. 1973, does not knock off the foundation of ground No. 1. Therefore, Mr. Patnaik's contention of the petitioner's absence from the place of business does not make ground No. 1 vulnerable.

8. In regard to ground No. 2 the material feature is that 80 bags of Urea were detected on 16-10-1973 from the tenanted premises of the petitioner. We have already indicated that it is not for us in this proceeding to determine the truth of the allegation. We have to proceed on the footing that the two rooms from one of which the recovery was made in the manner alleged were in physical occupation of the petitioner as a tenant. Therefrom the unaccounted for stock of Urea was seized, A reasonable inference had been drawn on account of the suppressions of the existence of the stock from the statutory returns made by the petitioner that these had been kept unaccounted for dealings which necessarily leads to the appropriate inference of storage for the purposes of black-marketing. It is this place from where delivery is said to have been effected to the buyers on 13-10-1973. The second ground, therefore, is not also open to attack.

9. On the analysis indicated above, the only conclusion that can emerge is that the order of detention is not open to challenge. We accordingly dismiss the application and uphold the order of detention.

B.K. Ray, J.

10. I agree.


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