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Khirod Chandra Sahu Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ1928
AppellantKhirod Chandra Sahu
RespondentState of Orissa and anr.
Cases Referred and State of U.P. v. Om Prakash Gupta
Excerpt:
.....18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - he having no liability under any law to report about arrival or to comply with any direction, failure to so comply could not be used as a ground for his detention. (vii) the food and civil supplies department of the state government which has approved the detention of the petitioner is not the appropriate department to make the order of confirmation under the rules of business and, therefore the confirmation of the order of detention is bad and petitioner's continued detention after the requisite period indicated in the statute is void. in this view of the..........cement company, visakhapatnam. the said detenu being the husband of the proprietress, manages the cement business on behalf of the proprietress keeping the lady in the background. at the time of verification of the stock registers of this firm, the detenu produced the stock register etc of the firm for verification by the executive magistrate. m/s. shrima iron stores was allotted 214 m. t. of cement during 2nd quarter of 1981 (april to june 1981). following arrival reports have been submitted to the collector in respect of cement received, from andhra cement company on behalf of the firm for the 2nd quarter of 1981 (april, may, june, 1981) for public distribution out of the 214 m. t. allotted to the firm.8-5-81 24 m.t. 480 bags11-5-81 24 m.t. 480 bags10-6-81 36 m.t. 720 bags11-6-81 36.....
Judgment:

R.N. Misra, C.J.

1. In this application under Article 226 of the Consln. challenge is to the order of detention (Annexure-1) dated 20-10-1981 by which the District Magistrate of Cuttack (opposite party 2) directed the detention of the petitioner in exercise of powers under Section 3(2)(a), Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.

2. The following two grounds were in due course communicated to the petitioner in support of the order of detention:

(i) The detenu is admittedly the Manager of the cement stockist, namely, Shrima Iron Stores, College Square. Cuttack-3, the proprietress of which is Smt. Kalyani Sahu. The above firm deals with cement procured from Andhra Cement Company, Visakhapatnam. The said detenu being the husband of the proprietress, manages the cement business on behalf of the proprietress keeping the lady in the background. At the time of verification of the stock registers of this firm, the detenu produced the stock register etc of the firm for verification by the Executive Magistrate. M/s. Shrima Iron Stores was allotted 214 M. T. of cement during 2nd quarter of 1981 (April to June 1981). Following arrival reports have been submitted to the Collector in respect of cement received, from Andhra Cement Company on behalf of the firm for the 2nd quarter of 1981 (April, May, June, 1981) for public distribution out of the 214 M. T. allotted to the Firm.

8-5-81 24 M.T. 480 bags11-5-81 24 M.T. 480 bags10-6-81 36 M.T. 720 bags11-6-81 36 M.T. 720 bags1-7-81 51 M.T. 1020 bagsTotal: 171 M.T.3420 bagsBut the Deputy Sales Manager, M/s. Andhra Cement Company, has reported that the above firm has lifted the following quantities of cement during the 2nd quarter of 1981.

_________________________________________________Date of Quaintly Trucks Nos. in which thedispatch lifted. quantity is dispatched,__________________________________________________5-5-81 24 M.T. ORK 2683 and ORG 46157-5-81 24 M.T. ORG 4306 and OSO 12526.6.81 12 M.T. OSO 93727.6.81 12 M.T. ORG 40358-6.81 30 M.T. ORG 7466, ORG 249, OSU 7959.6.81 26 M.T. OSO 6575, OSU 125210.6.81 12 M.T. ORG 430628.6.81 5 M.T. OSU 64729.6.81 36 M.T. OSU 2575, OSU 1179.ORU 94930-6-81 12 M.T. ORG 4035__________________________________________________193 M.T. (3960) bags.__________________________________________________Thus it will be seen that the detenu has not submitted the arrival reports in respect of 27 M. T. (540 bags). The stock book of the firm as verified by the Magistrate who conducted the stock verification also indicates that only 171 tonnes (3420 bags) has been taken to the stock and the rest 540 bags has not been entered in the slock. Thus it is clear that the detenu has deliberately suppressed the receipt of 540 bags of cement with the ulterior motive of blackmarket-ing the same which is an essential commodity, the present blackmarket price of the cement being the double of the controlled rates per bag of cement. This also amounts to an offence under Clause 3(b), Orissa Cement Control Order, 1973.

(ii) During the physical verification of the stock by the Executive Magistrate on 17-7-1981, it was found that 135 bags of cement including 20 damaged bags are available in the stock. But as per the closing balance of the stock in the stock book on the date of verification, 477 bags including 20 damaged bags should have been in the stock. On being called upon to explain the discrepancies by the verifying Magistrate, the detenu refused lo explain. Thus it is clear that the detenu has misappropriated 342 bags of cement with the ulterior motive of blackmarketing the same which is an essential commodity, the present blackmarket price of the cement being the double of the controlled rate per bag of cement. This also amounts to an offence under Clause 3(b), Orissa Cement Control Order, 1973.

3. The following contentions were raised and pressed before us at the time of hearing:

(i) The petitioner is not the Manager of Shirma Iron Stores and thus it could not be an admitted fact. He having no liability under any law to report about arrival or to comply with any direction, failure to so comply could not be used as a ground for his detention.

(ii) Conceding that the petitioner is the Manager since under law the Manager had no liability and infraction, if any, could be of the licensee, the licensee, and not the Manager could be visited with the order of detention.

(iii) M/s. Shrima Iron Stores is not a proprietary firm and Smt. Kalyani Sahu, wife of the petitioner, is not the proprietress. It is a partnership firm duly registered as required by law and An-nexure-3 is a copy of the deed which shows that the firm consists of three partners.

(iv) Merely the basis, that as against lifting of 198 metric tonnes of cement return had been furnished for 171 metric tonnes', could not be used as a ground for detention until it had been ascertained definitely that the entire stock of cement had been received by 17-7-1981, when the physical verification had been made by 'he Executive Magistrate.

(v) Reference to Clause 3(b) Orissa Cement Control Order, in the grounds of detention was misleading and irrelevant, inasmuch as the clause does not refer to any offence as stated in the grounds.

(vi) The order of detention was vitiated for having been made in a cavalier fashion without proper application of mind and verification of material facts.

(vii) The Food and Civil Supplies Department of the State Government which has approved the detention of the petitioner is not the appropriate department to make the order of confirmation under the Rules of Business and, therefore the confirmation of the order of detention is bad and petitioner's continued detention after the requisite period indicated in the Statute is void.

4. The detaining authority has filed a counter affidavit on 15-12-1981 wherein it hag been pleaded that the Executive Magistrate had checked the stock both on 17-7-1981 and 19-10-1981 (though in the grounds of detention there was no reference made to the second date). Reliance has been placed on an application made by some cement dealers addressed to the District Magistrate dated 10th of August 1981, wherein Shrima Iron Stores is also an applicant. It has been asserted that the Licensing Authority had issued the licence in favour of Smt, Kalyani Sahu as proprietress of the firm, Shrima Iron Stores, and the licensing record does not show that Shrima Iron Stoves is a firm. Reliance has been placed on a receipt dated 19-10-1981 granted by the Executive Magistrate in token of receiving the Stock Register of the firm where the petitioner has been described as Manager of the firm. In fact, this is one of the documents produced by the petitioner marked in Annexure 2 series. In the counter affidavit, it has been further pleaded that the Advisory Board has already opined that there is sufficient ground for detention of the petitioner and the State Government has passed an order confirming the detention, In para 19 of the counter affidavit, the detaining authority has pleaded:.I beg to submit that the fact that there were 27 M. T. of cement has not been taken into his stock and has been disposed of without valid permit and its disposal was not explained. It can reasonably be presumed that he has disposed of the same in a clandestine manner. The petitioner also has not been able to explain the shortage in stock of 342 bags of cement which can reasonably be presumed to have been disposed of in a clandestine manner...

Again, in para 22 with reference to the constitutional ground, it has been pleaded:.There is no illegality or mala fides on the part of the State Government in approving the order of detention made by the District Magistrate, Cuttack. It is not correct to say that the Home Department and not the Food and Civil Supplies Department of the State Govt. is competent to deal with the matter in question. On coming into force of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Ordinance, 1979, orders of the Chief Minister were obtained to the effect that the State Civil Supplies Deptt. shall administer the aforesaid Ordinance. Identical orders of the Chief Minister were also obtained by the Home Dept. and the said Deptt. had written to the erstwhile P. &.S. Deptt. in letter No. 3356/dated 31-10-1979 to insert necessary corrections in the Rules of Business. It is clear that Govt. orders had been duly obtained to vest competence in the Food and Civil Supplies Deptt. to deal with the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Ordinance, 1979, and naturally the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. In these circumstances, the order issued by the Stale Govt, in the Food and Civil Supplies Deptt. approving the order of detention passed by the District Magistrate is duly within its jurisdiction.

The relevant record has been produced before us as directed.

5. We shall first deal with the question as to whether Shrima Iron Stores is a proprietorship or a partnership firm. The original licence has been produced before us and we find the licensee is Smt, Kalyani Sahu. She has also been shown as proprietress though the business is carried in a name 'Shrima Iron Stores'. The same licence has been renewed for the year 1981. There are several clauses signed by.Smt. Kalyani Sahu describing herself as proprietress of the business. We have also come across a representation in the record where Smt. Kalyani Sahu has signed as the proprietress. In view of these clear materials we cannot hold that the licensee is a firm. The licensee may have joined with others for running the business, but so far as the Licensing Authority is concerned, he is entitled to proceed on the basis that the licensee continues to be Smt. Kalyani Sahu. There is, therefore, no force in the contention advanced on behalf of the petitioner that the detaining authority proceeded on a wrong presumption that Shrima Iron Stores belonged to Smt. Kalyani Sahu, wife of the petitioner.

The next question for consideration is whether the petitioner is the Manager of Shrima Iron Stores. There is no document designating the petitioner as the Manager for purposes of the business, nor is there a power-of-attornev in fev-our of the petitioner authorising him to manage the business on behalf of the licensee. Annexure-4 which has been relied upon in the counter affidavit in support of the plea that the petitioner was the Manager does not contain any material to support that fact. The Executive Magistrate in his report has referred the petitioner as the Manager and the receipt dated 19-10-1981 granted by the same Magistrate has described the petitioner as Manager and therein the petitioner has signed without giving any description of his status. In the return made by the detaining authority, the fact that the petitioner looks after the business has been relied upon. The licensee is admittedly petitioner's wife. In view of the fact that the licensee does not manage the business directly, it is quite probable that her husband, i.e. the petitioner, very often meddles with the business. Keeping the characteristics of an average Indian husband in view, it cannot be ruled that merely meddling with the business can bring in the status of a Manager. 'Manager' is a legal status and brings in rights and liabilities.

The Executive Magistrate's description of the petitioner as Manager might have been on the basis of his own impression flowing from the fact of meddling. There is not material indicated either in the report or in the return as to what basis the Executive Magistrate described the petitioner as Manager. No conclusive reliance can also be placed on the receipt dated 19-10-1981 which is a part of Annexure-2 series. The description of the petitioner as Manager is not by the petitioner himself. That description has been given by the verifying Magistrate. Reliance is being placed on the document by the detaining authority by contending that if the petitioner was not Manager, he was expected to object to the description when he signed before the Executive Magistrate. We do not have any material before us to indicate petitioner's educational qualification. The petitioner may not be possessed of an agile mind so as to take the notice of his description before signing the receipt. He has pleaded that he was ill and in a disturbed mind and in the circumstances, was not particular to find out in what way he had been described by the Executive Magistrate. These features cannot be brushed aside as irrelevant. In the first ground of detention, petitioner's status has been described as that of an admitted Manager. We are inclined to think that there is no clear material to show that the petitioner was the Manager of the business and the fact that he had been meddling with the business could not be very much used against him in view of the fact that he was not a stranger and happened to be the husband of the licensee. In these circumstances, to hold him liable for the alleged deficiencies or improper dealings in the business would not be appropriate.

Clause 3(b), Orissa Cement Control Order, 1973, which was brought in with effect from 25th of March, 1981, read thus:

No person shall sell, or offer for sale any quantity of cement except under and in accordance with a permit granted in Form I Or in any other manner, by the Controller or by any other officer authorised by him in this behalf and at rates fixed under Clause 12.

In both the grounds reference to this clause has been made, and it has been stated that the actions alleged amount to an offence under this clause. It has been contended before us that Clause 3(b) does not refer to an offence and under the Scheme, when there is a violation of any provision of the several Control Orders made under the Essential Commodities Act of 1955, the offence is actually under that Act and is punishable under Section 7 thereof In the facts of the case, the detaining authority has obviously come to the conclusion that there has been disposal of cement contrary to Clause 3(b), Orissa Cement Control Order. It is unfortunate that the word 'offence' has been used but in the context of the allegations, it is clear that what was intended is breach of the Clause. We do not think the order is assailable on this count

It was next contended that the impugned order was made in a cavalier fashion. The second ground refers to magisterial verification on 17-7-1981. In the return, reference has been made to another date in October when part verification was carried on. The second verification was on a day before the order of detention. There was no justification to exclude reference to that date, particularly when in the return reference to several facts happening on the second date has been indicated. The question as to whether the order has been made in a cavalier fashion loses its importance in view of our earlier finding that the petitioner cannot be said to be the Manager of the licensee's business.

The only other question which requires examination now is the contention that there has been no valid confirmation of the order of detention. Section 12(1), Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, provides:

In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.' Petitioner's contention is that the order of confirmation has been made by the State Government in the Pood and Civil Supplies Department which is not appropriate department to deal with the matter in accordance with the Orissa Government Rules of Business framed under Article 166(3) of the Constitution. Admittedly, under the 4th sub-heading relatable to Home Department with the subtitle 'Political' against the 'State Subjects', the third item reads thus:Preventive detention for reasons connected with the security of the state, the maintenance of public order or the maintenance of supplies and services essential to the community--Persons subjected to such detention.

On the basis of such entry, it is contended on behalf of the petitioner that the appropriate department where the order confirming the detention should have been passed is the Home Department and not the Food and Civil Supplies Department. Reliance has been placed on a decision of the Supreme Court in the case of Haridwar Singh v. Bagun Sumbrui : [1972]3SCR629 where the Court came to hold that Rule 10(1), Bihar Rules of Executive Business, which required prior consultation with the Finance Department was mandatory and a confirmation without such prior consultation was invalid. Counsel for the petitioner also referred us to some other decisions including an earlier decision of this Court in the case of Shyamaghana Ray v. State : AIR1952Ori200 as also a Special Bench decision of the Calcutta High Court in the case of Jay Engineering Works Ltd. v. State of West Bengal : AIR1968Cal407 . On the other hand, learned Advocate-General places reliance on a single Judge decision of the Calcutta High Court in the case of Arun Kumar Bhattacharjee v. State of West Bengal : (1969)ILLJ45Cal , where it has been held that the Rules made under Article 166(3) of the Constitution are intended for convenient transaction of business of the State Government and violation thereof would not create or confer a right upon a citizen to apply for a writ under Article 226 of the Constitution. We find support for this view in a decision of the Madras High Court in the case of N. Devasahayam v. State of Madras AIR 1958 Mad 53. The observations made by this Court in the case of Gagan Behari Swain v. Govt. of Orissa ILR (1977) 2 Cut 371, is more or less in accord with this view. A Full Bench of the Bombay High Court in the case of Chandrakant Sakharam v. State of Maharashtra : AIR1977Bom193 , has dealt with the question thus (at p. 209):

As regards formality or procedure indicated in Rule 9 of the Maharashtra Government Rules of Business read with second schedule thereto, compliance whereof was urged as a necessity the question will have to be considered whether the Business Rules framed by the Government of Maharashtra under Clauses 2 and 3 of Article 166 of the Constitution are mandatory or directory and how far compliance of the relevant rule on which reliance has been placed by counsel for the petitioners could be regarded as mandatory having regard to the fact that no particular procedure as such has been prescribed by the proviso to Article 309 of the Constitution itself. We have already indicated above that so far as Article 309 is concerned, the proviso thereunder does not prescribe or indicate any particular procedure that is required to be gone through before any rule could be framed thereunder. It is true that under Rule 9 of the Maharashtra Government Rules of Business it has been provided that all cases referred to in the Second Schedule shall be brought before the Council of Ministers in one or the other manner indicated in that rule and item (3) of the Second Schedule in terms refers to proposal for making or amending the rules regulating the recruitment and the conditions of service of persons appointed to the Public Service and posts in connection with the State (proviso to Article 309). In other words, ordinarily having regard to this provision, any proposal for making or amending the rules regulating the recruitment and service conditions of persons appointed to the public service and posts in connection with the State is required to be made and brought before the Council of Ministers. If regard be had to item 12 in the Second Schedule also it will appear clear that ordinarily even the proposals for legislation including the issuance of an ordinance under Article 213 of the Constitution-which item pertains to the domain of legislative field of the Governor-the same is required to be brought before the Council of Ministers under Rule 9. The question is what is the true legal effect of these Business Rules which have been framed by the State Government in exercise of the powers conferred by Clauses 2 and 3 of Article 166 of the Constitution? In our view, these Business Rules will have to be regarded as directory...

The Court proceeded to refer to the decisions in the cases of J. K. Gas Plant Mfg. Co. (Rampur) Ltd. v. Emperor AIR 1947 FC 38 : 48 Cri LJ 886 and State of U.P. v. Om Prakash Gupta : AIR1970SC679 . In the Supreme Court decision, the Rules of Business were held to be directory and substantial compliance was also found to be sufficient. In this view of the matter, we do not think the petitioner is entitled to contend relying on the allocation under the Rules of Business that the confirmation is bad.

Learned Advocate-General also placed another alternate contention before us. The Food and Civil Supplies Department has been given control over food-stuffs as also other essential commodities. The present Act is in relation to maintenance of supplies of essential commodities. In fact, when Ordinance 10 of 1979 which preceded the Act came, the question arose as to which department would deal with the matter. A formal decision seems to have been taken that not the Home Department but the Food and Civil Supplies Department would deal with the question. The Advisory Boards have been constituted by that department. Even the petitioner's representation against the detention was sent to that department. We cannot, in these circumstances, take the view that the Food and Civil Supplies Department would not be the appropriate department to deal with the matter and the order of detention, if confirmed by the Food and Civil Supplies Department, would be vitiated. This contention must fail.

6. We negative all the contentions advanced before us on behalf of the petitioner except in regard to the submission that there is no acceptable material on the record to show that the petitioner is the Manager of the business and since the order of detention has been grounded on that footing, the order is not supportable.

We accordingly allow the application, quash the order of detention of the petitioner and direct that he be set at liberty forthwith. There would be no order for costs.

B.K. Behera, J.

7. I agree with my Lord the Chief Justice.


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