Bhim Sen For R.S. Malik Mathra Das Vs.
The State of Punjab union of India [1951] INSC 44 (4 October 1951)
KANIA, HIRALAL J. (CJ) MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA
CITATION: 1951 AIR 481 1952 SCR 19
CITATOR INFO :
RF 1968 SC1303 (7,8) R 1974 SC 183 (29)
ACT:
Preventive Detention Act (IV of 1950), s. 3
(1)--Preventive detention for black-marketing--Order based on past
activities--Validity --Power of Court to consider sufficiency of
grounds--Effect of establishment of Advisory Boards under Preventive Detention
(Amending) Act, 1951.
HEADNOTE:
An order of detention to prevent
black-marketing cannot be held to be illegal merely because in the grounds for
such detention the detaining authority has referred only to the past activities
of the person detained, inasmuch as instances of past activities may give rise
to a subjective mental conviction that it is necessary to detain such person to
prevent him from indulging in black-marketing in the future.
Under the Preventive Detention. Act, 1950,
the test as to whether an order of detention should be made is the subjective
satisfaction of the detaining authority; the Court has no power to consider
whether the grounds supplied by the authority are sufficient to give rise to
such satisfaction. The establishment of the Advisory Board by the Amending Act
of 1951 has not made the matter a justiciable one, and even after the Amending
Act the Court has no power to consider whether the grounds supplied' are
sufficient for making an order of detention.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 45 to 49 of 1951.
Appeals from the judgments and orders dated
20th August, 1951, of the High Court of Judicature at Simla (Bhandari and Soni
33.) in Criminal Writ 'Cases Nos. 46 to 50 of 1951.
Jai Gopal Sethi (R. L. Kohli and Sri
Ramkumar, with him) for the appellants in Cr. Appeals Nos. 45 and 49.
20 N.C. Chatterjoe (Hardyal Hardy and R.L.
Kohli with him) for the appellant in Cr. Appeal No. 46.
Hardyal Hardy for the appellant in Cr. Appeal
No. 48. S.M. S.M. Sikri, Advocate-General of the Punjab (N. S. Doabia. with
him) for the respondent in all the appeals.
M.C. Setalvad, Attorney-General for India (G.
N. Joshi, with him) for the Intervener in Cr. Appeal No. 45.
1951. October 4. The Judgment of the Court
was delivered by KANIA C.J.--These are five companion appeals from the
judgments of the High Court of East Punjab and the principal point argued
before us is as to the legality of the detention of the appellants under the
Preventive Detention Act on the ground that they are engaged in black-marketing
in cotton piece goods.
The Jullundur Wholesale Cloth Syndicate was
formed to work out the distribution of cloth under the Government of Punjab
Control (Cloth) Order passed under the Essential Supplies Act. Certain persons
who held licences as wholesale dealers in cloth formed themselves into a
corporation and all cloth controlled by the Government was distributed in the
district to the retail quota holders through them.
The Government allotted quotas to the
retailers and orders were issued by the Government for giving each retailer
certain bales under the distribution control. If some of the retail licence
holders did not take delivery of the quotas allotted to them under the
Notification of the 4th of October, 1950, issued by the Government of India,
Department of Industries and Supplies, it was, inter alia, provided that the
wholesale syndicate may give the bales not so lifted to another retail dealer.
It may be noted that all along the price for the cloth to be sold wholesale and
retail had been fixed under Government orders. The Syndicate was suspected to
be dealing in black market and had been warned against its activities by the
District Magistrate of Jullundur several times. On the 7th of June, 1951, 21 an
order was issued by the District Organiser, Civil Supplies and Rationing,
Jullundur, to the managing agents of the wholesale cloth corporation, Jullundur
City, intimating that they were strictly forbidden to dispose of any uplifted
stock against unexpired terms without his prior permission in writing. They
were further directed that thenceforth no such stock would be allowed to be
sold to an individual retailer, but permission would be granted to sell the
same to associations of retailers only. It was stated that this letter was not
in accordance with clause 5 of the Notification of the Government of India
dated the 4th October, 1950, which authorized the wholesale syndicate to be at
liberty to sell uplifted cloth to any other retailer or an association of
retail dealers of the same district. It may be further noted that the Cotton
Cloth Control Order was in operation even prior to 1950. For some time control
on the distribution of cloth was lifted but the price remained under the
control of the Government. During that time it has been alleged that the
appellants and several others sold cloth at rates higher than those fixed by
the Government. Even when the distribution and price were both controlled, the
manufacturing mills were allowed to sell at prices fixed by the Government a
certain percentage of cloth which was not taken by the Government under its
control. This was described as free sale cloth and it was alleged that the
appellants and several others were doing black-marketing in this free sale
cloth.
By an order passed by the District Magistrate
on 19th June, 1951, he directed that the appellants be detained under section 3
(2) of the Preventive Detention Act to prevent them from acting in a manner
prejudicial to the maintenance of supplies of cloth, essential to the community.
On the 2nd July, 1951, the District Magistrate, Jullundur, directed that the
appellants be committed to District Jail, Jullundur, from the 2nd July until
the 1st October, 1951. The appellants were detained accordingly. The grounds
for their detention were given to them on the morning of the 6th July. The
grounds set out the activities of 22 the appellants as managing agents or
partners in different firms or employees of the said firms or corporations. It
was stated ,that they had been disposing of most of the stocks of cloth
received for the Jullundur District in the black market at exorbitant rates
from June, 1949, to October, 1950, during the period when control on
distribution was removed and that even after the re-imposition of that control
in October, 1950, they disposed of cloth which has been frozen under the
directions of Director of Civil Supplies in the short interval between the
passing of the order and its service on them. The second ground was in respect
of their individual activities as members of the firm in which they were
partners in disposing of stocks of cloth in black market at rates higher than
the controlled ones, to various dealers, through agents. The particulars were
specified in Appendix 'A'. They refer to the free sale cloth. In the-third
ground it was alleged that' by illegal means they deprived the rightful
claimants of the various stocks of cloth with a view to pass the same into
black market at exorbitant rates. We do not think it necessary to go into
greater details of these grounds or refer to the other grounds.
On the 9th of July, 1951, petitions under
article 226 of the Constitution of India were filed in the East Punjab High
Court asking for writs of habeas corpus against the State on the ground that
the detention of the appellants under the Preventive Detention Act was illegal.
The District Magistrate filed his affidavit in reply challenging the allegation
of mala fides and setting out in some detail instances of the activities of the
appellants and contended that on the reports received by him he was satisfied
that the detention of the appellants was necessary. Early in August, 1951, the
executive authorities cancelled the licence of the appellants as cloth dealers.
The High Court dismissed the petitions and the petitioners have come on appeal
to us.
Section 3 of the Preventive Detention Act,
1950, provides that the Central Government or the State Government may, if
satisfied with respect to any person that 23 with a view to preventing him from
acting in any manner prejudicial to the maintenance of supplies and services
essential to the community it is necessary so to do, make an order directing
that such person be detained. The power to act in accordance with the terms of
this provision was given by section 3 (2) to a District Magistrate. Such
Magistrate however was required to make a report to the State Government to
which he was subordinate about the order and also to send the grounds on which
the order had been made and such other particulars as, in his opinion, had a
bearing on the necessity of the order..
It is not disputed that an order under section
3 (2) of the Preventive Detention Act to prevent black-marketing can be passed
by the District Magistrate. On behalf of the appellants it is contended that in
the grounds for their detention reference is made to their activities prior to
June, 1951, only. This cannot be considered objectionable because having regard
to those activities it is alleged that the satisfaction required under the
section had arisen. It was next argued that such loophole as existed in the
total control of distribution and' sale and price of piecegoods in the district
was sealed by the order of the District Organiser dated the 7th June, 1951. By
virtue of that order the syndicate or corporation could not sell any cloth
without an express order in writing from the District Organiser, and therefore
there could be no black-marketing after that date by any of the appellants and
the order was therefore unjustified. It was next contended that in any event
now as their licences are cancelled they cannot deal in cloth and the order of
detention now maintained against them is more in the nature of punishment than
prevention. It was argued that orders under the Preventive Detention Act were
for the purpose of preventing a person from acting in future in the
objectionable way contemplated by the Act and it was beyond the scope of the
Act to pass orders in respect of their alleged activities anterior to June,
1951.
In our opinion the High Court approached the
matter quite correctly. Instances of past activities are relevant 24 to be
considered in giving rise to the subjective mental conviction of the District
Magistrate that the appellants were likely to indulge in objectionable
activities. The grounds which were given for the detention are relevant and the
question whether they are sufficient or not is not for the decision of the
Court. The Legislature has made only the subjective satisfaction of the authority
making the order essential for passing the order. The contention that because
in the Amending Act of 1951 an Advisory Board is constituted, which can
supervise and override the decision taken by the executive authority, and
therefore the question whether the grounds are sufficient to give rise to the
satisfaction has become a justifiable issue in Court, is clearly unsound.
The satisfaction for making the initial order
is and has always been under the Preventive Detention Act, that of the
authority making the order. Because the Amending Act of 1951 establishes a
supervisory authority, that discretion and subjective test is not taken away
and by the establishment of the Advisory Board, in our opinion, the Court is
not given the jurisdiction to decide whether the subjective decision of the
authority making the order was right or not.
Proceeding on the footing, therefore, that
the jurisdiction to decide whether the appellants should be detained under the Preventive
Detention Act on the grounds conveyed to the appellants is of the District
Magistrate. In the present cases, two arguments were advanced on behalf of the
appellants. It was strenuously urged that by reason of the order of the
District Organiser of the 7th June, 1951, the only loophole which remained in
the scheme of distribution and sale of cloth under control of the Government
was sealed and it was impossible after that order to do any black marketing by
any of the appellants. We are unable to accept this contention. In the first
place, this order appears to be an administrative order and is in the nature of
a warning. It is at variance with the provisions of clause 5 of the Order of
the Central Government of the 4th October, 1950. Moreover this order does not
bring about the result claimed for it.
A lot 25 of cloth which the manufacturers are
permitted to distribute through persons outside the Government agencies can
still be secured and sold at exorbitant rates, i.e., at rates higher than those
fixed by the Government. The second argument was that as the licences of the
appellants are now cancelled they cannot deal in textile cloth at all and
therefore there can be no apprehension of their indulging in black market
activities. We are unable to accept this argument also because it is common
knowledge that licences can be obtained in the name of nominees. Again while
these people may not have their licences in Jullundur District they may have or
may obtain licences in other districts. From the fact that their licences have
been cancelled a month after the order of detention was passed we are unable to
hold that it is impossible on that ground for the appellants to indulge in
black market activities. In this connection an extract from the further
affidavit of the District Magistrate of Jullundur dated 1st August, 1951, may
be usefully noticed. He stated:
"There have been orders for the release
of certain stocks of cloth in respect of other mills, as free sale cloth after
the 9th June, 1951. Any quantity of cloth not paid for and lifted by the
owners' nominees will revert to the Mills for free sale: vide letter No. CYC-2/
SLM, dated the 31st May, 1951, from the Textile Commissioner, Bombay, to all
selected Mills in Bombay and Ahmedabad. This cloth can be purchased by any
wholesale dealer of cloth of India, without any restriction. Not only this,
free sale cloth can be transported from one district to another without a permit:
vide Memo No. 28894-CS (C) 50/48791, dated 2nd January, 1951, from the Joint
Director, Civil Supplies, and UnderSecretary to Government Punjab to the
District Organiser, Civil Supplies and Rationing, Ludhiana. Again free sale
cloth is also procurable from individual firms who conspired to make profit by
black marketing. The only information which is supplied by a purchaser of
wholesale cloth to the District Magistrate is as to what quantity of such cloth
has been imported 4 26 into the district. According to the report of the
District Organiser no such cloth was imported into Jullundur by the corporation
but there are reasons to believe that the Corporation had been making their
purchases in free sale cloth from the Mills and using those bales to make up
the deficiency in the bales of quota cloth of superior quality which they used
to dispose of in the black market in collusion with the Mills. Besides, the
firm Rattan Chand Mathra Dass, as would be evident from the attached lists
signed by the District Organiser, had been dealing in free sale cloth and had
also been importing cloth as Reserve of Kangra and also Provincial Reserve.
Most of this quota also found its way into the black market. Similarly the firm
Madan Gopal Nand Lall and Company had been dealing in free sale cloth on a
large scale. It would be evident from the attached list.
Santi Sarup, the Secretary of the
Corporation, is believed to be a partner in the firm Hari Chand Bindra Ban and
this firm also had been dealing in free sale cloth. The free sale cloth
acquired by them used to be invariably sold in the black market as reported by
the District Organiser in his Memo No. 6306/6734-M/CT/Do. 7 dated 1st August, 1950, in reply to my Memo. No. nil dated 30th July, 1951. There is absolutely no bar for the wholesale cloth corporation, Jullundur, to its getting
free sale cloth from the Mills or other wholesale dealers nor is there any bar
for the firms Rattan Chand Mathra Dass and Madan Gopal Nand Lal and Co. to the
acquiring of free sale cloth." It was next argued on behalf of the
appellants that the only order of detention made against them was the order of
the 2nd July and that did not refer to any section of the Preventive Detention
Act and did not suggest that there was any satisfaction of the detaining
authority. It was argued that no order of the 19th of June was ever shown to
any of the appellants or served on them and therefore their detention was
illegal. It should be pointed out that these contentions are raised in the
affidavits not of the detained persons, but of their relations. Their
affidavits do not show that they have any personal knowledge. The affidavits 27
on this point are based only on their belief and information and the source of
the information is not even disclosed. As against this, there is the affidavit
of the District Magistrate which expressly states that the terms of the Order
of the 19th of June were fully explained to each of the detenus. The petitions
for the writs of habeas corpus were filed within a week after the service of
the detention order and we do not think there is any reason to doubt the correctness
of the statements of the District Magistrate. In our opinion this ground of
attack on the order of detention has no substance and the detention cannot be
held illegal on that ground. The judgment of the High Court was attacked on
these grounds and as we are unable to accept any of these contentions the
appeals must fail.
One of the appellants is the secretary of one
corporation and another is a salesman and clerk in one of the firms. On their
behalf it was urged that they could not indulge in black market activities. We
are unable to accept this contention in view of what is stated in the
affidavits of the District Magistrate. It is there pointed out that in addition
to being a secretary or a clerk and in those capacities actively participating
in the black market activities of their principals, they were themselves
indulging in black market activities in cloth. If these and other facts in
respect of the appellants are disputed the matter will be considered by the
Advisory Board. The question of the truth of those statements however is not
within the jurisdiction of this Court to decide. As all the grounds urged
against the judgment of the High Court fail, all the five appeals are
dismissed.
Appeals dismissed.
Agent for the appellants in all the appeals:
R.S. Narula.
Agent for the respondent and Intervener: P.A.
Mehta.
Back
