Motilal Jain Vs. State of Bihar &
Ors [1968] INSC 83 (27 March 1968)
27/03/1968 HEGDE, K.S.
HEGDE, K.S.
VAIDYIALINGAM, C.A.
SHAH, J.C.
SIKRI, S.M.
BACHAWAT, R.S.
MITTER, G.K.
CITATION: 1968 AIR 1509 1968 SCR (3) 587
CITATOR INFO:
RF 1969 SC 323 (13) RF 1973 SC 295 (8) R 1974
SC 156 (6) R 1974 SC 183 (15,19,59) R 1974 SC 255 (9) R 1979 SC1925 (8)
ACT:
Preventive Detention Act (4 of 1950), ss.
3(1)(c)(iii) and 4 Several grounds in order of detention-Some Vague and nonexistent
Whether order can be sustained.
HEADNOTE:
The appellants partner in a grocery shop, was
detained under s. 3 (I) (a) (iii) and s. 4 of the Preventive Detention Act for
indulging in black-marketing of essential commodities.
He was supplied with an order detailing a
number of grounds in support of his detention. In one of the &rounds viz.,
cl. (a) of the order the name of the shopkeeper to whom the appellant was said
to have sold match boxes and soap "at a price higher than that fixed for
these commodities" was not mentioned. Neither the price fixed nor the
price at which it was said to have been sold was mentioned. In another ground
viz.' el. (d) of the order a sale was alleged to K who was not existing in the
described locality. On the question of the validity of the order of detention,
this Court,
HELD : The order must be set aside., The
ground mentioned in cl. (a) was vague. The futility of making representation in
respect of an unknown man and of an unspecified price can easily be imagined.
There was no opportunity to the appellant' to satisfy the Advisory Board that
the alleged purchaser was a ficutious figure or that he is an enemy of his or
that the information given by him should otherwise be not accepted. [590 C-E]
Further, there was nothing to show that the Government had either fixed the
sale price of the commodities or it had any power to do so. Therefore the
ground in el. (a) was not only vague but also irrelevant.
The ground mentioned in el. (d) was
non-existent. The State's explanation that the sale was made to K of another
locality and due to typographical mistake the locality was wrongly described
was curious That apart, the appellant could not have made any representation in
respect of the such a new allegation against him.
The State's contention that even if the
grounds mentioned in cis. (a) and (d) are ignored, still the detention of the
appellant could be justified on the remaining grounds mentioned in that order,
was wholly untenable. The defects noticed in the two grounds viz cls. (a) and
(d) were sufficient to vitiate the order of detention impugned, in these
proceedings as it was not possible to hold that those grounds could not have
influenced the decision of the detaining authority. The constitutional
requirement that the grounds must not be vague must be satisfied with respect
to each of the grounds communicated to the person detained subject to the claim
of privilege under el. (6) of Art. 22 of the Constitution, and where one of the
grounds mentioned is vague, even though other grounds are not vague the
detention is not in accordance with the procedure established by law and is
therefore illegal. [591 F; C-D].
L7 Sup. CI/68-13 588 Dr. RaM Krishan Bhardwaj
v. State of Delhi, [1953] S.C.R. 708, Shibban Lal Saksena v. State of U.P.
[1954] S.C.R. 418, Dwarka Dass Bhatia v. State of Jammu and Kashmir, [1956]
S.C.R. 948 and Rameshwar Lal Patwari v. State of Bihar, [1968] 2 S.C.R. 505,
followed.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 34 of 1968.
Appeal by special leave from the Judgment and
order dated December 15, 1967 of the, Patna High Court in Crl. W.J.C.
No. 92 of 1966.
M. C. Chagla, A. N. Sinha and B. P. Jha, for
the appellant.
U. P. Singh, for respondent No. 1.
The Judgment of the Court was delivered by
Hegde, J. In this appeal by special leave, the question for decision is whether
the appellants detention under sub-cl.
(iii) of cl. (a) of sub-s. (1) of S. 3 and of
S. 4 of the Preventive Detention Act, 1950, (IV of 1950)-to be hereinafter
referred to as "theAct", as per order, of the Governor of Bihar No.
A-DE-Pur1501/67-6357/G dated September 25, 1967, is unlawful.
The appellant is a partner in the grocery
shop by name "Shanti Stores" in Gulab Bagh where sugar, maida, soap,
match boxes, kerosene oil and other articles are sold. He is said to have
indulged in black-marketing is essential commodities. As per the order of
September 27, 1967 grounds in-support of the appellanes detention were
supplied. They read as follows "(a) On 10-3-1967 he sold match boxes and
soap to a shopkeeper of Purnea Court compound at a price higher than that fixed
for these commodities and did not grant any receipt for the same.
(b) On 15-3-1967 it transpired from one Satyanarain
Prasad a shopkeeper of Purnea Bus stand, that he (Shri Motilal Jain) sold Wm
match boxes at Rs. 1 1 /per gross which was Rs. 2/higher than the price fixed.
This was also substantiated by Nagendra Ramoli, a shopkeeper of-Purnea Court
compound who had also been supplied match boxes at the higher rate by him (Shri
Motilal Jain).
(c) On 15-4-1967 it transpired from
Chandradeb Sao, Shankerlal Modi, and Sitaram Sah, all of Gulab Bagh that-they
got supplies of sugar and maida from him in excess of the quantity allotted to
them on ration cards at a price higher than those fixed by the Government.
(d) On 7-5-1967. he sold kerosene oil to one
Kishun Bhagat of Gulab Bagh at Rs. 12/per tin 589 (excluding cost of tin) which
was higher than 'the price fixed by the Government.
(e) On 4-7-1967 he sold sugar at Rs. 2/per
kg. to Shyamsunder Poddar and Jangli Singh of Dhamdaha. The price charged by
him was much higher than the rate fixed by the Government in this regard.
(f)On 7-8-1967 it was learnt from Nathu Sah,
Chanderdeb Sah, Kusurnlal Sah, and Ram Rattan Sah, all of Gulab Bagh, that he
(Shri Motilal Jain) indulged in black-marketing of sugar, niaida, kerosene oil
and other controlled commodities, to deal in which he had obtained licence. It
was further learnt from Moti Sah a worker of Gulab Bagh Navayubak Sangh that he
(Shri Motilal Jain) obtained supplies of match boxes, vegetable, oil from West
Bengal to sell them in black market.
Though the appellant made representation
against his order of detention to the Advisory Board, the said Board did not
recommend his case for release. Thereafter he approached the High Court of
Patna in Cr. W.J.C. No. 92 of 1966 under Art. 226 of the Constitution and s.
491 of, the Code of Criminal Procedure for a writ or order in the nature of
habeas corpus directing his release from detention. .A Bench of that High Court
consisting of the learned Chief Justice and B. N. Jha J., refused to entertain
that petition with these observations "We have also gone through the
grounds stated in annexure-'B' and find that specific instances with full
particulars have been given. On the basis of those instances the detaining
authority has held that the petitioner has been indulging in black-marketing of
essential commodities. Mr. Balbhadra Prasad Singh challenged the correctness of
the facts stated in the grounds and also filed affidavits by certain' persons
and urged that those allegations of facts should not be believed. This Court in
its writ jurisdiction cannot sit in second appeal -and examine whether specific
instances of black marketing were established by satisfactory evidence.
"For these reasons, we are not satisfied
that this is a fit case for admission. The application is accordingly
dismissed." It is against that order the appellant has come up in appeal
to this Court.
Mr. Chagla, learned counsel for the appellant
contended that each -one of the grounds supplied to 'the appellant in support
590 of the order of detention is either vague or non-existing, and therefore
the appellant's detention is clearly illegal.
After we have heard the learned counsel for
the appellant as wen as the learned counsel for the respondents in respect of
the grounds mentioned in cls. (a) and (d) of the order of September 27, 1967,
we did not think it necessary to examine the remaining grounds as we were of
the opinion that the ground set out in cl. (a) is vague as well as irrelevant
and that set out in cl. (d) is non-existing, and as such the impugned order of
detention cannot be sustained.
On an examination of facts set out in cl. (a)
of the order, it is seen that the name of the shopkeeper to whom the Appellant
is said to have sold match boxes and soap "at a price higher than that
fixed for these commodities" is not mentioned. Neither the price fixed nor
the price at which the appellant is said to have sold the match boxes and soap
is mentioned. The futility of making representation against an unknown man in
respect of an unspecified price can easily be imagined.. There was no
opportunity to the appellant to satisfy the Advisory Board that the alleged
purchaser is a fictitious figure or that he is an enemy of his or that the
information given by him should otherwise be, not accepted.
As things stood the appellant was left to
attack a shadow.
He could not also make any representation as
regards the alleged sale or the price at which the goods were sold except
making a bare denial of the accusations made against him. That is not all. The
appellant definitely averred in his special leave application that the
Government neither fixed the sale price of the match boxes or soap nor it had
any power to do so. This averment is not controverted, On" the other hand
what was stated in reply by the respondents was that the manufacturers had
fixed the retail price of those articles and the appellant could not have sold
them for a price higher than that fixed by the manufacturers. It is not the
case of the respondents that. the price fixed by the manufacturers-assuming
that there was any such fixation and further assuming that the appellant had
sold the articles in question at a price higher than the price fixed had any
legal sanction behind it A notification issued by the Bihar Government on
January 20, 1967 and published on March 1, 1967, 'in exercise of the powers
conferred on it by S. 3 of the Essential Commodities Act, 1955 (10 of 1955), read
with the order of the Government of India in the Ministry of Commerce published
under notification No. S.O.
1844 dated June 18, 1966, the only provision
of law on which reliance was placed by. the respondents, prescribes that a
dealer should obtain a price list showing the wholesale and retail Price of the
commodity purchased by him or obtained by him from every manufacturer, importer
or distributor where such prices are fixed by the manufacturers and display at
a conspicuous part of the place where he carries on his business the price list
591 and stock position of the scheduled commodities specified in Schedules I
and 11 of that Order; further he should not withhold from sale except under
specified circumstances any of the commodities mentioned in Schedule II
thereto. That Order empowers the State Government by order to regulate the I
distribution of any scheduled commodity mentioned in Sch. II by any
manufacturer, producer or distributor in such area or areas and in such manner
as may be specified. It is not the case of the respondents that the appellant
had contravened the aforementioned Order in any manner. Hence, the ground set
out in cl. (a) of the order of September 27, 1967 is not only vague but also
irrelevant.
In clause (d) of that order it is mentioned
that the appellant sold kerosene oil to one Kishun Bhagat of Gulab Bagh at Rs.
12/per tin (excluding cost of tin) which was higher than the price fixed by the
Government. in his special leave. application among other things, the appellant
asserted that there is -no Person by the name of Kishun, Bhagat in Gulab Bagh.
In the reply filed on behalf of the respondents that allegation is accepted as
correct.
The new case pleaded by the respondents is
that the alleged sale was made to Kishun Bhagat of village Kishanpur, P. S. Dhamdaha,
and there was typographical mistake in mentioning the name of the purchaser in
the grounds supplied to the detenu. This is a curious explanation. That apart,
quite clearly the appellant could not have made any representation in respect
of the new allegation leveled against him. Hence the ground mentioned in cl.
(d) must be held to be non existing.
it was strenuously urged on behalf of the
respondents that even if the grounds mentioned in cls, (a) and (d) of the order
of Government dated September 27, 1967 are ignored, still the detention of the
appellant can be justified on the basis of there grounds mentioned in that
order. We have no hesitation in rejecting this contention as being wholly
untenable.
It must be remembered that in this case we
are dealing with the liberty of a citizen of this country. The power -given to
the State under the Act is an extraordinary power. It is exercisable under
special conditions and is subject to definite limitations. The nature of the
power is such that the liberty of an individual can be deprived on the
subjective satisfaction of the prescribed authority that there is sufficient
cause for his detention. A detenu has not the benefit of a regular trial or
even an objective examination of the accusations made against him. As observed
by this Court in Dr. Ram Krishan Bhardwaj v. The State of Delhi(1), preventive,
detention is a serious invasion of personal liberty and such (1) [1953] S. C.
R. 708.
592 safeguards as the Constitution has
provided against the improper exercise of the power must be jealously watched
and enforced by the Court. In that case this Court further laid down that under
Art. 22(5) of the Constitution, as interpreted by this Court, a person detained
under the Act, is entitled, in addition to the right to have the ground of his
detention communicated -to him, to a further night to have particulars as full
and adequate as the circumstances permit furnished to him as to enable him to
make representation against the order of detention and the sufficiency of the
particulars conveyed in the second communication is a justiciable issue ' the
test being whether they are sufficient to enable the detained person to make
representation which on being considered may give him relief. It is also laid
down in that decision that the constitutional requirement that the; grounds
must not be vague must be satisfied with respect to each of the grounds.
communicated to the person detained subject
to the claim of privilege under cl. (6) of Art. 22 of the Constitution, and
where one of the, grounds mentioned is vague, even though the other grounds are
not vague the detention is not in accordance with the procedure established by
law and is therefore illegal.
The same view was reiterated by this Court in
Shibban Lal Saksena v. The State of U.P.(1). There it was found that out of the
two grounds served on the detenu one was nonexistent. The contention of the
State that the detention of Shri Saxena should not be interfered with because
one of the two grounds mentioned in the order is a good ground, was rejected by
this Court with the observation that to say that the other ground which still
remains is quite sufficient to sustain the order would be to substitute an
objective judicial test for the subjective decision of the executive authority
which is against the legislative policy underlying the statute and in such
cases the position would be the same as if one of these two grounds was
irrelevant for the purpose of the Act or was wholly illusory and that would
vitiate the detention order as a whole.
In Dwarka Dass Bhatia V. The State of Jammu
and Kashmir("), Bhatia was ordered to be detained on the ground -that it
was necessary to detain him with a view to preventing him from acting in a
manner prejudicial to the maintenance of supplies and services essential to
'the community. The said order was based on the, ground of alleged illicit
smuggling by Bhatia of essential goods, such as saffron cloth,. zari and
mercury to Pakistan. It was found that shaffon cloth and zari were not
essential goods. It was not established that the smuggling attributed to Bhatia
was substantially Only of mercury or that the smuggling as regards,shaffon
cloth and zari was of an inconsequential nature. On those facts (1) [1951]
S.C.R. 418.
(2) [1956] S.C.R. 948.
593 this Court held that the order of
detention was bad and must be quashed. The subjective satisfaction of the
detaining authority must be properly based on all the reasons on which it
purports to be based. If some out of those reasons are found to be nonexistent
or irrelevant, the court cannot predicate what the subjective satisfaction of
the authority would have been on the exclusion of those reasons. To uphold the
order on the remaining reasons would be to substitute the objective standards
of the court for the subjective satisfaction of the authority. The Court must,
however, be satisfied that the vague or irrelevant grounds are such as, if
excluded, might reasonably have affected the subjective satisfaction of the
authority.
In a recent case, Ranteshwar Lal Patwari v.
The State of Bihar('), speaking for the Court, Hidayatullah, J. (as he then
was) observed "The detention of a person without a trial, merely on the
subjective satisfaction of an authority, however high, is a serious matter.
It must require the closest scrutiny of the
material on which the decision is formed, leaving no room for errors or at
least avoidable errors. The very reason that the courts do not consider the
reasonableness of the opinion formed or the sufficiency of the material on
which it is based, indicates the need for the greatest circumspection on the
part of those who wield this power over others. Since the detenu is not placed
before a Magistrate and has only a right of being supplied the grounds of
detention with a view to his making a representation to -the Advisory Board,
the grounds must not be vague or indefinite and must afford a real
"opportunity to make a representation against the detention. Similarly, if
a vital ground is shown to be non-existing so that it could not have and ought
not to have playeda part in the material for consideration, the Court may
attach some importance to this fact." The defects noticed in the two
grounds mentioned above are sufficient to vitiate the order of detention
impugned in these proceedings as it is not possible to hold that those grounds
could not have influenced the decision of the detaining authority. Individual
liberty is a cherished right, one of the most valuable fundamental rights guaranteed
by our Constitution to the citizens of this country. If that right is invaded,
excepting strictly in accordance with law, the aggrieved party is entitled to
appeal to the judicial power of the State for relief. We are not unaware of the
fact that the interest of the society is no less important than (1) [1968] 2
S.C.R. 505.
594 that of the individual. Our Constitution
has made provision for safeguarding the interests of the society. Its
provisions harmonise the liberty of the individual with social interest. The
authorities have to act solely on the basis of those provisions. They cannot
deal with the liberty of the individual in a casual manner, as has been done in
this case. Such an approach does not advance the true social interest.
Continued indifference to individual liberty is bound to errode the structure
of our democratic society. We wish that the High Court had examined the:
complaint of the appellant more closely.
For the reasons mentioned above, this appeal
is allowed and the order of detention impugned herein is set aside. The
appellant is directed to be set at liberty forthwith.
Y.P. Appeal allowed.
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